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BIOGRAPHICAL NOTICE 



STEPHEN J. FIELD. 



TAKEN PAKTI.Y FROM THE RECORD OF THE FAMILY OF TH K 
LATE REV. DAVID D. FIELD, OF STOCKBRIDGE^JVtASS.. 
COMPILED BY HIS YOUNGEST SON, HENRY M. FIELD, 
AND PARTLY FROM DOCUMENTS IN THE POS- 
SESSION OF DIFFERENT MEMBERS 
OF THE FAMILY. 




NOT PUBLISHED. BUT PRINTED ONLY FOR THE 
USE OF THE FAMILY. 



a 



STEPHEN J. FIELD 



Now, for the first time in the history of our family, 
death came into the household. In the midsummer of 
1815 (July 11) was born a fifth son, to whom, in honor 
of a venerable minister of Connecticut, was given the 
name of Stephen Johnson. He lived but a little over 
five months, dying on Christmas day of the same year. 
It was a bitter sorrow to the bereaved parents, and so 
deeply did they feel it that, when they removed to Stock- 
bridge, the sharpest pang was the thought that they 
should leave that babe behind. More than thirty years 
afterward my father made a journey to Connecticut, to 
take up that little form, and bear it tenderly over the 
mountains, and lay it down again beside its kindred dust. 
This early grief consecrated the memory of that child, so 
that when a sixth son was born, November 4, 1816, his 
parents gave him the same name. He, too, was of a mould 
so delicate and fragile as gave little promise that he could 
ever reach manhood. For a time it seemed doubtful if 
he could live. The old dames who came around his 
cradle shook their heads, and told his mother that "she 
could never raise that child ! " But her love watched 
him night and day — no hired attendant ever took her 
place — and carried him through the perils of infancy. 
Nothing but that incessant care saved him; so that he 
has always had reason to feel that, in a double sense, he 
owed his life to his mother. 

He was not three years old when the family removed 
to Stockbridge, in August, 1819, and here he spent the 



ten years following — the period of boyhood. In 1829 
(December 2) his sister Emilia was married to Rev. Josiah 
Brewer, who was immediately to embark for the East, as 
a missionary, to promote female education among the 
Greeks. Her brother Dudley (who, as the eldest of the 
family, was always looking out for the education and 
advancement of his brothers) thought it would be a good 
opjjortunity for Stephen, now a boy of thirteen, to accom- 
pany his sister, to study the Oriental languages, and thus 
qualify liim.self to be a professor of Oriental literature in 
some college on his return. His sister was delighted at 
the .suggestion, and as our parents gave their con.sent, it 
was decided uj)on. The family |)arty .sailed from Xew 
York on the Kith of 1 )ec(Mnlx'r, bound for Smyrna. It 
had been Mr. Brewer's intention to go from there to Greece, 
but when he reached Smyrna he was persuaded to remain 
in that city as a place where he could labor for Greek 
education (juite as effectively as in Greece itself. There 
were in Asia Minor at that time more Greeks than of any 
other nation. Accordingly he settled in Smyrna, where 
he rcniainiMJ nine years. Vnv two and a half Stej^hen 
was in his family. During that time he vistetl Ei)hesus, 
Scio. Patmos, Tenos, and .Egina. He accomjtanied Mrs. 
Hill (the wife of Bev. John Hill. D. !>.. thr wrll-known 
Episeojjal missionary in Greece) from Smyrna to Athens, 
and there spent the winter of 18ol-'o2. The |)laee was 
then in ruins, and, unable to find a convi-nirnt house, they 
lived in an old Venetian towt'r. So Dr. Hill liim.self in- 
formed me on a visit to Athens in November, 1875, when 
the place once destroyed had arisiii fmiu its ashes, and 
grown to be a large and bcantilul city. W'liiK' in the 
lOast young Field learni'd niothiii (iieik so that he 
could speak it fluently, and for a time kei)t iiis journal 
in it. He also aeijuirt'tl s(»nie kiitiwledge of Italian. 
Frc-neh, and Turkish. 

( )f these years spent ill the J'^ast he has always re- 
taineil very vivid impressions. Living in a foreign 



country, and mingling with people of another race, lan- 
guage, and religion, enlarged his ideas. He formed a 
better opinion of the Turks. In travelling with tliem he 
found that they were very attentive to their devotions, 
saying their prayers at sunrise, at noon, and at sun- 
set. Often he was awakened at night by their rising to 
say their prayers. He had been educated in the strictest 
school of the Puritans, who, with all their good qualities, 
were not the most tolerant of religious opinions which 
differed from their own. Of course this child of a strict 
New England pastor was taught to look with horror upon 
the followers of the False Prophet; but for all that, he 
was profoundly impressed with what he saw, and could 
not but conclude that there must be something good in a 
religion which inspired such devotion. 

He found that the Turks were proverbially honest in 
their dealings. If he went into a bazaar to inquire if a 
piece of coin was good, he would be asked, " Did you get 
it from a Turk ? " If he said " Yes," that settled the point 
that it was good ; if he said "No," they would ring it to 
test its genuineness. One day some gentlemen of his 
acquaintance were looking for a place in the country for 
the summer, and one was recommended to them as a 
quiet, orderly place, where the people were very moral — 
"for there was not a Christian within ten miles!" This 
was his first lesson in religious tolerance. 

Another lesson of the same kind he learned in regard 
to the members of the Greek Church, with whom he 
often came in contact, and found that they were most ex- 
emplary in their religious duties. So with the Roman 
Catholics, of whom there were many in Sm3a'na; he saw 
in them a degree of devotion which was an example to 
Protestants. These things gradually opened his young 
eyes, and satisfied him that not all the religion in the 
world is to be found in Protestant Christendom. 

An experience of a very different kind was the visita- 
tions of the plague and the cholera, by which Smyrna. 



like so many other cities of the East, was often scourged. 
In the terrible plague of 1831 every one avoided his 
neighbor, as if the slightest touch carried contagion. If 
two men met in the street, each drew away from the other, 
as if contact were death. Sometimes they hugged the 
walls of the houses, with canes in their hands, ready to 
strike down any one who should approach. All papers 
and letters coming through the mails were smoked and 
dipped in vinegar before they were delivered, lest they 
might communicate infection. Even vegetables were 
passed through water before they were taken from the 
hands of the seller. Terrible tales were told of scenes 
where guests were carried away dead from the table, and 
servants dropped down while waiting upon it. On every 
countenance was dcj)i(t((l an expression of terror. When 
the plague appeared in a hou.se, it was instantly deserted, 
the occupants running from it without stojjping to look 
at anything, or to take anything with them, as if pursued 
by an avenging angel. Of those who were attacked nearly 
one-half were swept away. Few, except those who had 
recovered from the plague, ventured to go about the city. 
And it was not till the pestilence had spent its force, and 
their houses had been thoroughly cleansed and {)urified, 
that the afl'righted inliabitants returned to their homes. 

Such was the nu'inoniMc plauiU' of lS;!l,()f wliirli this 
missiouiU-y family were witnesses. Mr. Hrewer remained 
in the city for two or three weeks after it broke out, when, 
for the satety of his faiuily. he took thcni on board a vi'ssel 
and .sailed for Malta. l)Ut no sooner hail they ai-rived 
than they were ordered into quarantine. So, without 
remaining more than twoorthreedays,notbeingpermitted 
to land, they returned to Smyrna, after an ab.'^encc of a 
little over si.x weeks, when the jilague had j)assed. ()n 
the retui'ii \o\-age the\' \isiteil Patiuos, Seio. and other 
i>iaiid^ of tile < Jreeiaii .\ rehi|)e]ag(). 

In llie autumn of ihesaine year Smyrna was visited 
with llu' Asiatic ( boh ra, wlien there were three hundred 



deaths a day. Thirty thousand people left tlie city and 
camped in the fields. During that period Mr. Brewer 
filled his pockets with medicines and went around in the 
lanes and alleys, and ministered to the sick and dying. 
His young brother-in-law, with his pockets filled in the 
same way, accompanied him in all his rounds. An ex- 
tract which we have copied in our sketch of sister Emilia 
speaks of Mr. Browser's intrepid devotion amid these 
terrible scenes. 

, Young Field remained in the East two years and a 
half, when Mr. Brewer thought it was time for him to 
return to America to enter college. Accordingly he sailed 
for home in the latter part of 1832, and entered Williams 
College in the fall of 1833. He graduated in 1837, Avith 
the valedictory oration — the highest honor of his class. 
The next spring he went to New York, and began the 
study of law in his brother Dudley's office. His studies 
were interrupted by a long illness. When he was suffi- 
ciently recovered he removed to Albany for change of 
scene and occupation, and for some months heard recita- 
tions of classes in the Female Academy, spending his 
leisure time in the office of John Van Buren, the Attorney- 
General of the State. After a year and a half he returned 
to New York city, and re-entered his brother's office, and 
in 1841 was admitted to the bar, and became his partner, 
and so remained for seven years. - 

The long illness thus spoken of resulted from an injury 
to his right knee-joint, which occurred in the city of New 
York in the summer of 1838. He was walking, one 
morning in August, down Nassau street, when he came 
in collision with the hub of the wheel of a small coal- 
cart drawn up on the sidewalk, which he had not noticed, 
his attention at the time being drawn to something else. 
The injury was thought to be slight, and, though j)ainful, 
did not delay him in proceeding to his otfice. On the 
evening of that day there was some infiamnuition in 
the joint, and the pain had increased. On the follow- 



ing morning he was advised to send for a physician, and 
did so. lie did not, at the time, think that the injury 
would interrupt his ordinar}- occupations more than one 
day. His physician, however, gave him a large quantity 
of calomel, which greatly prostrated him and, instead of 
diminishing, increased the inflammation in his knee-joint. 
The result was that he was confined to his room in New 
York for several weeks, and was tlien carried on his bed 
to Haddam, Connecticut, where his parents resided. 
After some months' conhneinent he was able to get up, 
but so serious had been tiie injury to his knee-joint, prin- 
cijnilly, he lias always tliought, from the medicine taken, 
that he was unable to bring his right foot to the ground, 
and for some months he went on crutches. In the fall of 
the following year he was able to throw one of the crutches 
aside and to walk with the aid of the other. The lame- 
ness which resulted from tiiis injury has never entirely 
left him. For several years it was slight, but, unfortu- 
nately, in the summer of 1882, when in California, he 
received an additional injury to it. He was invited by 
friends of Senator Casserly to act as a }iall-bearer at his 
funeral, and he did so. The services were at the church 
at the corner of Dujiont and California streets. After 
they were concluded, instead of the ])all-bearers being 
furnished with carriages to take them to the cemetery, 
they were requested to walk after the hearse down Cali- 
fornia street, up Montgomery street to Market street, and 
along Market street for several blocks. At that time the 
streets of San Francisco were wretchedly j)aved with cob- 
ble-stones of various sizes and placed in irregular order. 
Whilst walking up Nhirket street Mr. I-'ield ste|>ped on 
one of tiiesi* colji)le-stones, about three inches higiier than 
its neighbors, whicli so wivnched his knee that he was 
obliged to leave the piocession. I'm- many years after- 
wards lie was not frei' from pain exee}»t when asleep or 
occupied in some .serious nmtter engaging his close atten- 
tion. I If was a great sullerer from this cause, and though 



9 

he consulted eminent surgeons, both in this country and 
in Europe, he obtained very little relief from their treat- 
ment or from the treatment which he has taken at differ- 
ent watering-places whose waters were supposed to possess 
healing virtues. His lameness has not, however, pre- 
vented him, at any time, from the performance of his 
regular judicial duties. 

^ In the spring of 1848 he was seized with a desire to 
visit Europe, and, terminating his partnersliip with his 
brother, that he might be free, he went abroad, and spent 
the following winter in Paris. That was the year of the 
Revolution, when Louis Philippe was overthrown, and 
the government of France was passing through the stage 
of a Republic back to the Second Empire. While he was 
in the city it was visited with the cholera, whose terrible 
ravages recalled the cholera of Smyrna. His sister Mary 
joined him in Paris, and in the following s[)ring his 
brother Cyrus and his wife went to Europe, and they 
all met in Brussels, and together travelled during the 
summer. The continent was still in great agitation. They 
were in Rome soon after the French troops had taken 
possession ; and were in Vienna while the war was raging 
in Hungary, and its forces were approaching that city* 
They returned home in the autumn of that year. ^ 

The fall of 1849 was a stirring moment in the histor}^ 
of the country. The Mexican war had been brought to 
a close the previous year by a treaty in which California 
was ceded to the United States, and soon afterwards this 
new acquisition was discovered to be a land in the bed 
of whose streams and in whose hills and mountains gold 
was found. Nothing could be conceived more fitted to 
excite the imagination of young America. The picture 
of an empire on the Pacific, rising as it were out of the 
sea, presented itself as a boundless field for cnterjirise 
and ambition. No one was more prepared to catch the 
excitement than the young lawyer just returned from 
Europe. Years before his attention had been drawn to 
2 



tlie country bordering on the Pacific, and particularly to 
the bay of San Francisco. In 1845, the year before the 
Mexican war, his brother Dudley had written two articles 
for the Democratic Review — a political magazine of the 
day — upon the Oregon question, which was that of the 
northwestern boundary between the British possessions 
and the territory of the United States. In preparing 
tliem, he Jiad examined several works on Oregon and 
California, and among others that of Greenhow, then 
recently published, and thus became familiar with the 
geography of the Pacific Coast. Afterwards, when the 
war broke out, in speaking of its probable issue, he re- 
marked that "if he were a young man he would goto 
San Francisco," for he was satisfied that peace would never 
be concluded without our acquiring its harbor (as there 
was no other equally good harbor on the coast), and that, 
in his opinion, at no distant day a great city would rise 
on its borders. He oflered to furnish his younger brother 
the means to go, and also for investment in land lying on 
the harbor. Some months afterwards, while Col. Steven- 
son's regiment was preparing to start from New York for 
California, his brother again referred to the subject, and 
suggested tlie idea of his going out with the regiment. 
l>ut he wishetl to go to Europe, and so the j)rqject was 
deferred. But the idea thus suggested had taken j)Osses- 
sion of his mind. lie was attracted by the prospect of 
adventure in a new eomiti-y. besides the aiiibitinn of being 
one of the founders of a new commonwealth which it 
was evident would, at no distant day, rise on the Pacific 
Coast. 

In December, 184S, while in Paris, he read in the New 
York Herald the mes.-sage uf President Polk confirming 
the reports of the discovery of gold in California. This 
recalled liie suggestion of his brother, an<l made liim 
almost regret that he had not acted upon it. But as he 
was now in iuirope, he «'oneludetl to carry out his original 
jilan of etdijpleting his tour ln'fore nturning to .Vnieriea. 



11 

But the fire was only smothered, not extinguished, and it 
burst out anew when he found himself once more in his 
own country, being kindled afresh by the general excite- 
ment. Crowds were leaving by every steamer for the 
Isthmus and by every ship around Cape Horn. Thous- 
ands had crossed the plains the previous summer, or 
were on their way. He was not long in making up his 
mind. He landed in New York on the 1st of October, 
and on the 13th of November he left on the steamer 
Crescent City for Chagres, an old Spanish-American 
town on a river of that name, on the Isthmus of Panama, 
where he arrived in about a week. In company with 
others he took a boat and was pushed up the river by 
Indians to Cruces, where they engaged mules and rode 
over the mountain to the city of Panama. Here they 
found a crowd of emigrants and adventurers bound for 
the land of gold. They took passage for San Francisco 
on an old steamer named the California, which was 
crowded to the utmost, passengers being stowed in every 
nook and corner, and some without even a berth, lying on 
the deck. It was said there were over twelve hundred 
persons on board. Many carried with them the seeds of 
disease, contracted under a tropical sun, which, being 
aggravated by hardships, insufficient food, and the 
crowded condition of the steamer, developed as the voy- 
age proceeded. Panama fever in its worst form broke 
out, and soon the main deck was covered with the sick. 
There was a physician attached to the ship, but he, too, 
was prostrated. In this extremity the young law3'^er, just 
from New York and from Paris, turned himself into a 
nurse, and went from one sufferer to another, bending 
over the sick, and watching them as carefully as if he 
had been trained in a hospital. One gentleman, after- 
wards a lawyer of high standing in California, Mr. Greg- 
ory Yale, thought that he owed his life to this attention 
of his fellow^passenger, and ever after felt towards him 
as a brother. At last, after twenty -two days, this voyage 



12 

of misery ended; he reached San Francisco on ahnostthe 
last day of the year, December 28, 1849, and went on 
shore between eight and nine o'clock at night. 

Mr. Field landed in California with ten dollars in his 
pocket. He had two trunks. These were of too great 
weight for him to carry; so lie was compelled to pay seven 
out of his ten dollars to have them taken to an old adobe 
building, where a room was secured, about ten feet long 
by eiglit wide, for thirty-five dollars a week. Two of his 
fellow-i)assengers sliared it with liiin. They took the bed, 
and he took the floor. The next morning he started out 
early with three dollars in his pocket, and hunted U}) a 
restaurant, and ordered the cheapest breakfast to be had: 
it co.st two dollars; so that when he began his career in 
California he had, as a capital to start on, exactly one 
dollar! But he did not abate a jot of heart or hope. In 
after years, when he could smile at his early fortunes, he 
loved to recount these first experiences.* He .^aid: 

"I was in no respect despondent over my financial condition. 
It was a beautifid day, much like an Indian-summer day in the 
lOa.-t, l)iit liner. Tlicre \va.< ^omethinir exhilaratini: and excitinj^ 
in the atmosphere which made everyhody cheerful and buoyant. 
As I walked alon<r the streets, I met a jrreat many perstms I had 
known in New Vdik, and ihey all seemed to he in the highest 

*His friend.s in California, many <>l' wlioni iiail lutii. like liimstir, 
ainonjr tlie pioneers of '49, were as fond of lu'aring as lie eouid lie of re- 
latiofi his adventures, and often ur;red liini to jnit them on reeord Ju'fore 
he and tliey .slionld pas.s away. Tliis he lon^ refnsed. Hut once, when 
in San Franci.'^efi, lie was jiersuaded to dictate some of them to a reporter, 
who took tliem down in .shorthand, and afterwards wrote them out. In 
the course of successive conversations they ^rcw into a volume, which 
was printed privately for his friends under the title "Per.sonal Keminis- 
cenccs of Karly Days in California." It reads more like a tale of liction 
tlian of soher reality. Thou>:h related in tiimiliar style, as one tells a 
story to a j.'ronp of friends, it isa thrilling narrative, full of excitement 
and :i<K('iitui(>, and full also of dau<;ers, from comin;; in contlict willi 
d<s]ii rate men, that could only In- met with thejireatesf i)fi"sonal coura^ic. 
'I'o some of tlusc incidents we may ref»M- hereafter, thou^rli it can only he 
a |iassin;i allusion, as w<' must reserve what s]i:uf we have to spi;ik ol' 
hiH work iiH a lej;islatur and a judge. 



13 

spirits. Every one in greeting me said, 'It is a glorious country,' 
or ' Isn't it a glorious country?' or 'Did you ever see a ifiore 
glorious country?' or something to that effect. In every ca.se the 
word 'glorious' was sure to come out. There was something in- 
fectious in the use of the word, or rather in the feeling which 
made its use natural. I had not been out many hours that morn- 
ing before I caught the infection; and though I had but a single 
dollar in my pocket and no business whatever, and did not know 
where I was to get the next meal, I found myself saying to every- 
body I met, ' It is a glorious country.' 

" The city presented an appearance which, to me, who had 
witnessed some curious scenes in the course of my travels, was 
singularly strange and wild. The bay then washed a portion 
of the east side of what is now Montgomery street, one of the 
principal streets of the city; and the sides of the hills sloping 
back from the water were covered with buildings of various kinds, 
some just begun, a few completed — all, however, of the rudest 
sort, the greater number being nierely canvas sheds. The streets 
were filled with jieople, it seemed to me, from ever}' nation under 
heaven, all wearing their peculiar costumes. The majority of 
them were from the States; and each State had furnished speci- 
mens of every type within its borders. Every country of Europe 
had its representatives; and wanderers without a country were 
there in great numbers. There were also Chileans, Sonorians, 
Kanakas from the Sandwich Islands and Chinese from Canton 
and Hong Kong. All seemed, in hurrying to and fro, to be busily 
occupied and in a state of pleasurable excitement. Everything 
needed for their wants, food, clothing, and lodging-quarters, and 
everything required for transportation and mining, were in urgent 
demand and obtained extravagant prices. Yet no one seemed to 
complain of the charges made. There was an apparent disdain 
of all attempts to cheapen articles and reduce prices. News from 
the East was eagerly sought from all new-comers. Newspapers 
from New York were sold at a dollar apiece. I had a bundle of 
them, and seeing the price paid for such papers, I gave them to a 
fellow-passenger, telling him he might have half he could get for 
them. There were sixty-four numbers, if I recollect right, and 
the third day after our arrival, to my astonishment, he handed 
me thirty-two dollars, stating that he had sold them all at a dollar 
apiece. Nearly everything else brought a similarly extravagant 
price." 



14 

r 

His fortunes were further recruited by the proceeds of 
a note of over §400, which his brother Dudley had given 
him against a man who, having prospered in his new 
home, paid it promptly. As the new-comer handled the 
money in Spanish doubloons, he felt rich. With this 
start he opened an office in San Francisco, but had only 
received his first fee when the excitement about gold in 
the interior led him to abandon the city and take a 
steamer up the Sacramento River, then in its annual flood, 
to a i)oint which, bein<j; at the junction of two rivers, the 
Feather and the Yuba, seemed a natural site for a town, 
and where already some hundreds of people had pitched 
their tents upon the bank. Two of the proprietors were 
French gentlemen, who were delighted when they found 
he could speak French, and insisted on showing him the 
town site. It was a beautiful spot, covered with live-oak 
trees that reminded him of the oak parks of England. 
He saw at once that the place, from its position at the 
head of river navigation, was destined to become an im- 
portant depot for the neighboring mines, and that its 
beauty and healthfulncss would render it a ])leasant place 
for residence. Here accordingly he ])itched his tent, and 
was to si)end the next seven years. 

As may well be supposed, life in this new settlement 
was very primitive. Besides the old adobe of the original 
settler, there was only one house. The new-comers slept 
in tents or under the open sky. But this was the least of 
their anxieties. The constitution of the State, adopted 
the previous year, was not framed by a convention con- 
vened by the authority of Congress, and, for that reason, 
great douljt of its validity and of legislatii)n under its 
jtrovisioiis was entertained by many of tiic iininigrants. 
Among thosi- who were then at the new settlenu'iit, tlure 
was no rcc»igiii/,c<| <itlici;il authority: indei'd, tlu-rc wi're 
no olliccrsof the govcrnmeiit criati'(l under that constitu- 
tion, and there was no pi-otection for life or property ex- 
cept the iustiiu't of st'lf-preservation w hieh leads men to 



15 

combine to protect one another. To create something like 
civil order in this settlement, the first thing was to or- 
ganize a temporary local government. So some of the 
leading settlers assembled on the evening of the 17th of 
Januar}^ (1850), and christening the place with a name — 
that of Marysville, in honor of the only woman in the 
place, the wife of one of the proprietors of the town — 
they agreed to call a public meeting of citizens of the 
settlement the next day to consider the question of 
establishing a town government. Accordingly, on the 
following morning, the 18th of January, such public 
meeting was held in front of the Adobe House, the only 
substantial building of the place, except the one hastily 
thrown up the day before, and it was there resolved 
that a town government should be established, and for 
that purpose that there should be elected a town council 
— an ayuntamiento in Spanish phrase — and a first and 
second alcalde (the latter to act in the absence or sick- 
ness of the former), and a marshal; and they proceeded 
at once to carry the resolution into effect. In the after- 
noon of the same day the election took place. To the 
position of first alcalde Mr. Field was chosen. Under 
the Mexican law an alcalde was an officer of very limited 
jurisdiction; but in the anomalous condition of affairs in 
California at this time, he was called upon to exercise, 
and did exercise, very great powers. Mr. Field, therefore, 
became at once the centre of authority, around whom the 
elements of society could crystallize. He was the chief 
magistrate in the newly-formed community, and had use 
for all his powers, since along with the respectable, the 
orderly, and the law-abiding class of people there was a 
great number of disreputable characters — gamblers and 
desperadoes, the refuse of older communities — who had 
to be held in check with a firm hand. They soon found 
that there was an authority with which they could not 
trifle. Thus, a man was accused of having committed a 
robbery — of having stolen gold dust out of the tent of a 



16 

miner. lie was arrested and carried before the alcalde. 
After hearing a statement of the alleged facts, the alcalde 
directed that a grand jury should be immediately sum- 
moned to consider the case, and in a very short time its 
members assembled, and, after hearing the evidence, re- 
ported that a burglary had been committed, and formally 
accused the prisoner. A ]»etty jury was thereupon at 
once called, and the {)ri.<oiU'r put upnn hi.s trial, an attor- 
ney having been first a{)})ointed by the alcalde to defend 
him. The trial did not last long, and the i)risoner was 
convicted, the evidence being clear and conclusive. A 
portion of the gold dust stolen was found upon him. 
The whole proceding, from the arrest of the prisoner to 
his conviction, occupied only a part of a day. What 
should be done with the convict then became a serious 
subject of consideration. There was no jail to hold j)ris- 
oners, and the sheriff" could not be kept st<inding guard 
over him. Nor could lie be sent to San Francisco but at 
great expense. If he had been turned over to the crowd, 
they would have hung him witliout hesitation to the 
nearest tree. The judgment of the alcalde was more 
merciful, though not less swift and ell'ective. It was as 
all punishment of crime ought to be, sharp and slinging. 
The thief was sentenced to be publicly whipped with tifty 
lashes on his bare back, with a clause added that if he 
were found within the nt-xt two years in the viciiiii\- of 
Mar^'sville he should be again whi|»pt'd. Tiic marshal 
of the court iiiiiiicdiatcly niaichcil liiiii \n a trrc in the 
])ul)lic plaza and inliicttd the sentence, the alcaldi' pri- 
vately ordering a physician to be present so as to see that 
no unnecessary severity was practicrd. 'j'lial was the last 
seen of the fellow in tbat region. Tlif Judge, in his 
"Reminiscences,'" remarks that the laltir part of the scn- 
tcnc"- was unnecessaiy, I'nr there was something so (K-- 
grading in a public whipping that he had never known 
u man thus whi|iped who would sta\' at the |ilaee longer 
than he could help, nv ever disirtd to return. \\y the 



17 

sentence inflicted the sense of justice of the comm unity 
was satisfied and while no blood was shed, or hanging 
done, a severe public example was given. 

Thus the alcalde did not bear rule in vain. A few in- 
stances of such wholesome severity quelled the spirit of 
lawlessness, and established order in the community. A 
good many bad characters hung about the i)lace, and 
gambling shops were open; but deeds of violence were 
effectually repressed, and during the whole time that he 
bore rule this settlement was as peaceful as a New Eng- 
land village. Sometimes he had more pleasing duties 
than that of trying criminals and inflicting punishment. 
In one case a husband and wife came to him bitterly com- 
plaining of each other, and demanding an immediate 
'divorce. Then the good alcalde forgot his oflice as a 
magistrate, and tried to interpose as a pacificator and 
friend, which he did with such good effect that they })rom- 
ised to kiss and forgive each other, and dei)arted arm in 
arm, to live in peace and love forever after, amid the cheers 
of the large audience that had gathered by the novel pro- 
ceeding at the alcalde's office. 

As chief magistrate he had the general superintendence 
over matters affecting the public interests of the town. 
He had the banks of the Yuba River graded so as to facili- 
tate the landing from steamers and other vessels. He 
established a night police, and kept the record of deeds of 
real property. 

This efficient rule of the alcalde was of course but tem- 
porary. It ceased as the new State government wont into 
operation, and its oflicers appeared and took the ])lace of 
officials with Spanish titles and unlimited powers. The 
change was no doubt, on the whole, a benefit, although 
in some cases it was quite the contrary, as in the haste of 
organization some very unfit men were appointecl to posi- 
tions in which their power for mischief was groat. Thus 
of the District Court, who.se territorial jurisdiction em- 
braced Yuba County, a lawyer from Texas, who was a 
3 



18 

bully of the lowest type, wa.s appointed judge. A drunk- 
ard, he often appeared in court in a state of intoxication, 
and by his vulgar and brutal manners created very general 
disgust. He took a hatred to Mr. Field, and even threat- 
ened personal violence, so that the latter always went 
armed, and the former, in consequence, confined himself 
to swaggering and blur?ter. But the annoyance did not 
continue long. In the fall of that year Mr. Field was 
elected a member of the Legislature, and secured a reor- 
ganization of the judicial district, by which this model 
judge was sent off to the extreme northern part of the 
State, where at the time there were few inhabitants and 
little litigation. For .some years he continued on the bench , 
but his ungovernable passions and habits of intoxication 
finally led to a movement for his impeachment, wluii lie 
resigned, and soon afterwards died. 

The nomination to the Legislature introduced Mr. Fiehl 
to a new ex{)erience. Every candidate liad to make the 
canvass for himself; it did not do to stand upon his 
dignity. The people did not know him, and an Eastern 
reputation counted for little in the mining gulches of 
California. lie had to mount his horse, like a Methodist 
circuit-rider, and ride from camp to camp, speaking to 
the peoj)le wherever he could lind them — in the oak 
grove, under the shade of trees, or by the river-side, where 
they washed for gold, hi this way he saw a great deal 
of the rough life of the border, and had many a novel, 
and sometimesa touching, ex j)erience. A singh- ineiiK'nt. 
which is related in the " Personal Reminiscences." is givi'U 
in the note below.* 

*I wituessed some strange scenes during the campiii;rn, which wfll 
illustrated tlie unonialons condition of society in the coniitrv. I will 
mention one of tlieni. As I ajipioached (Jrass Valley, tlien a luautiriil 
spot among the hills, occupitd pi imiiially l>y Mr. Walsh, a nanii- siiuc 
become familiar to Californiaiis, I came to a hnilding liy the waysidt-, a 
small lodging house an<l <lrinkiiig saloon, ojiposite t4) which a lynch jury 
were sit ting, trying a man up<m a charg«' ol' stealing gold dust. I stopp«'<l 
and wulehud tor awhile the progress of tlie iriul. On un occ;usion of 



19 

The experience of this campaign was useful in other 
ways. In the mining camps he learned the rules by which 
the miners regulated their claims, and their relations with 
each other — rules which he was soon to lift into dignity 
by giving them the force of positive law. 

The Legislature met in San Jose, then the capital of the 
State, on the first Monday of January, 1851. The Legis- 
lature of the previous year had done much, but it left 
much more to be done by its successor. There was an 
immense work on its hands in framing laws required by 
the conditions of the State, which had recently come into 
existence, but destined to a magnificent future. Here Mr. 

some little delay iu the proceedings I mentioned to those present, the 
jury included, that I was a candidate for the Legislature, and that I 
would be glad if they would join me in a glass in the saloon, an invita- 
tion which was seldom declined in those days. It wiis at once accepted, 
and, leaving the accused in the hands of an improvised constable, the 
jury entered the house and partook of the drinks which its bar afforded. 
I had discovered, or imagined from the appearance of the prisoner, that 
he had been familiar in other days with a very different life from that 
of California, and my sympathies were moved towards him. So, after 
the jurors had taken their drinks and were talking pleasantly together, 
I slipped out of the building, and, approaching the man, said to him: 
" What is the case against you ? Can I help you ? " The poor fellow 
looked up to me and his eyes filled with great globules of tears as he 
replied, "I am innocent of all I am charged with. I have never stolen 
anything nor cheated any one; but I have no one here to befriend me." 
That was enough for me. Those eyes, filled as they were, touched my 
heart. I hurried back to the saloon, and, as the jurors were standing 
about chatting with each other, I exclaimed: "How is this? You have 
not had your cigars? Mr. Barkeeper, please give the gentlemen the best 
yon have ; and, besides," I added, " let us have another 'smile'— it is not 
often you have a candidate for the Legislature among you." A laugh 
followed, and a ready acceptance was given to the invitation. In tlie 
meantime my eyes rested upon a benevolent-looking man among the 
jury, and I singled him out for conversation. I managed to draw him 
aside, and inquired what State he came from. He replied, from Connec- 
ticut. I then asked if his parents lived there. He answered, with a 
faltering voice, "My father is dead; my mother and sister are there." 
I then said, " Your thoughts, I dare say, go out constantly to them, and 
you often write to them, of course." His eyes glistened, and I saw pearl- 
like devvdrops gathering in them -his thoughts were carried over the 



20 

Field found himself at home. As a diligent student of 
law for many years, he had become familiar with the Civil 
and Criminal Codes and the Codes of Procedure at the 
East, and now had opportunity to turn to account the 
results of long study, aided by experience and observa- 
tion. He at once took a leading position in the Legisla- 
ture, and, it is said by those familiar with the history of 
that body, did more towards framing tlic laws of California 
than any other individual. 

Ho at once directed special attention to legislation for 
till- [irotcction of miners. California was a mining State. 
The vast immigration from the East had come in search 

mountains to his old lionie. " All, my i:^ood friend," I added, " liow their 
hearts must rejoice to hear from you!" Then, after a short pause, 1 
reui.irked, " What is the case against your prisoner? He, too, perhapst 
may have a mother and sister in the East, thinking of him as your 
mother and si.ster do of you, and wondering when he will come hack. 
For God's sake remember this!'" The heart of the good man responded 
in a voice which, even to this day — now nearly thirty years past — sounds 
like a delicious melody in my ears: "I will do sol " Passing from him 
I went to the other jurors, and, finding they were about to go back to 
the trial, I exclaimed, "Don't be in a hurry, gentlemen; let us take 
another glass." They again acceded to my request, and, seeing that they 
were a little mellowed by their indulgence, I ventured to speak about 
the trial. I told them that the courts of the State were organized, and 
there was no necessity or justilication now for lynch juries; that the 
prisoner ajipearcd to be without friends, and I ai)pealed to them, as men 
of large hearts, to think how they would feel if they were accused of 
crime where they had no counsel and no friends. " Hetter send him, 
gentlemen, to Marysville for trial, and keep your own hands free from 
slain." A pause ensued ; their hearts were softened; and. fortunately, 
a man going to Marysville with a wagon, coming u|) at this moment, I 
j)re\ailed upon them to |iiii tlit- |iris(iiur in his charge to be taken there. 
The own«'r of the wagon consenting, tluy swore him to take the prisoner 
to that place and deliver him over to the siieiilV, and to make sure that 
he would keep the oath, I handed him a " slug," a local coin of octagonal 
form, of the value <tf fifty dollars, issued at that time by assayers in .San 
I'ranci.sco. We soon afterwards separated. As I m(i\i<l away on my 
horse my head swam a little, l)ut my heart was joyous. Of all things 
wliicb I can lecall <if tlu' past, tliis is one of the most plea.sant. I believe 
I sa\((l the prisonci's life, for in those ilays there was seldom any escaju- 
III! a person tried by a lynch jury. 



21 

of gold. This was for the moment the great interest of 
the State, and the miners the most important cLass of the 
population. Here Mr. Field turned to account his recent 
experience. He had been among the miners. He had 
slept in their tents and their cabins, and sat by their camp- 
iires, listening to the tales of their adventures. He had 
learned something of the rules by which they were gov- 
erned — rules by which he perceived that justice was prac- 
tically administered. He saw that it would never do to 
undertake to override these regulations by a set of arbi- 
trary laws, framed at a distance, by men ignorant of their 
peculiar conditions. The attempt to impose such an 
authority would be extremely impolitic; it would pro- 
voke resistance; a conflict would be inevitable: and what 
was far more important in his view, it would be cruelly 
unjust. The miners, who at great hardship and peril had 
sought out the places where gold was hidden in the beds 
of rivers and in the rocks of the mountains, had rights 
which could not be ignored. The wise course was to give 
the sanction of law to the rules which they had made for 
themselves. Then the}' could not complain of injustice 
when bound by the laws w'hich they had framed for their 
own protection. Accordingly at an early stage of the ses- 
sion he introduced the following provision, which through 
his advocacy was adopted and incorporated into a general 
statute regulating proceedings in civil cases in the courts 
of the State : 

"In actions respecting ' Mining (Jlaims' proof shall be admitted 
of the customs, usages, or regulations established and in force at 
the bar, or diggings embracing such claims; and such customs, 
usages, or regulations, when not in conflict with the Constitution 
and laws of this State, shall govern the decision of the action." 

These five lines contain, as the acorn contains the oak, 
the germinal principle of a whole code of wise and benefi- 
cent legislation. The great ])rinciples of law, being 
founded in natural justice, are always simple, and yet 
simple as this was, no one had had the sagacity to [)cv- 



22 

ceive or the courage to })ropose it; but once proposed and 
adopted, it solved all difficulties, and smoothed the way 
to peace in all the borders of the Golden State. Its prin- 
ciple was afterwards adopted by other mining regions, 
and finally by the Congress of the United States. Its 
M'isdom has been proved by thirty years of experience. 
For this single act, says a California writer, "the people 
of this State and of Nevada should ever hold the author 
in grateful remembrance. When they think of him only 
as a judge deciding upon the administration of laws 
framed by others, let them be reminded that in a single 
sentence he laid the foundation of our raining system so 
firmly that it has not been, and cannot be, disturbed." 
Years after, when Mr. Field became a Ju.stice of the Su- 
preme Court of the United States, he commented, in an 
oi)inion in an inij)ortant case, upon the usages and regu- 
lations of miners, to which this legislation gave the force 
of law, and upon the vast benefits of that legislation. 
An extract from that opinion is given in a note below.* 

* "The discovery of jjold in California was followed, as is well known, 
by an immen.se immigration into the State, which increased its popula- 
tion within tliree or four yeans from a few thousixnd to several hundred 
thousand. The lands in which the precious metals were found Ijelonjied 
to the United States, and were unsurvej'ed, and not ojien, hv law, to 
occupation and settlement. Little was known of them further than that 
they were situated in the Sierra Nevada Mountains. Into these moun- 
tains the immit;rants in vast numbers penetrated, occupyiufr the ravines, 
gulches, and canons, and probinj^ the earth in all directions for the 
precious metals. Wherever they went they carried with them that love 
of order and system and of fair tlealinn which are the prominent charac- 
teristics of our i»eoj)le. -'In every district wliich they occu|iied tliey 
framed certain rules for their government, by which the extent of ground 
they could severally luiltl for mining was designated, their possessory 
right to surh gniund secured and enforced, and contests Ix-tween thenj 
either avoided or determined. These rules bore a marked similarity, 
varying in the several districts only according to the extent and char- 
acter «»f the mines, distinct jirovisions l)eing made for diflerent kinds of 
mining, such as placer mining, (luart/ mining, and mining in drifts or 
tunnels. Tln-y all recognized disct»vrry followed by a))]>ro)iriation as llie 
foundation of tlie possessor's title, and deviiopimnt by working as the 



23 

Of the provision of law cited, Professor Pomero}', in 
his sketch of the work of Judge Field, after speaking of 
its far-sighted sagacity, expediency, and wisdom, as estab- 
lished by the experience of thirty years throughout all the 
Pacific mining States and Territories, says: "I therefore 
venture the opinion, and think that its correctness can- 
not be questioned, that no single act of creative legisla- 
tion, dealing with property rights and private interests, 
has exceeded this one in importance and in its etfects in 
developing the industrial resources of the country. * The 



condition of its retention. And they were so framed as to secure to all 
comers, within practicable limits, absolute equality of riiilit and privi- 
lege in working the mines. Nothing but such ecjualily would have been 
tolerated by the miuers, who were emphatically the law-nuikers, as re- 
spects mining, upon the public lands in the State. The first appropriator 
was everywhere held to have, within certain well-defined limits, a better 
right than others to the claims taken up ; and iu all controversies, except 
as against the government, he was regarded as the original owner, from 
whom title was to be traced. But the mines could not be worked with- 
out water. Without water the gold would remain tbrever buried in the 
earth or rock. To carry water to mining localities, when they were not 
on the banks of a stream or lake, became, therefore, an important and 
necessary business in carrying on mining. Here, also, the first appro- 
priator of water to be conveyed to such localities, for mining or other 
beneficial purposes, was recognized as having, to the extent of actual 
use, the better right.iirThe doctrines of the common law respecting the 
rights of riparian owners were not considered as applicable, or only in a 
very limited degree, to the condition of miners in the mountains. The 
waters of rivers and lakes were consequently carried great distances in 
ditches and flumes, constructed with vast labor aud enormous expendi- 
tures of money, along the sides of mountains and tlirough canons and 
ravines, to supply communities engaged in mining, as well iis for agricul- 
turists and ordinary consumption. Numerous regulations were adopted, 
or assumed to exist from their obvious justness, for the security' of these 
ditches and flumes, and the protection of rights to water, not only be- 
tween diflierent appropriators, but between them and the holdei-s of 
mining claims. These regulations and customs were appealed to in con- 
troversies in the State courts, and received their sanction ; and properties 
to the value of many millions rested upon them. For eighteen years, 
from 1848 to 1866, the regulations aud customs of miners, as enforced 
and moulded by the courts, and sanctioned by the legislation of the 
State, constituted the law governing proi)erty iu mines and in water on 
the public mineral lands." (Jennison v. Kirk, 98 U. S. 4n7.) 



24 

causes which led to its enactment, its simple but efficient 
nature, and its beneficial consequences, cannot be better 
described than in the language of Judge Field himself, 
in an opinion," from which we have given an extract in a 
note. And he adds: "This enactment gave the force of 
law to an equitable system of mining and water regula- 
tions, and has been the direct means of promoting and 
protecting an industry which has secured and added an 
untold amount to the total wealth and resources of the 
country. I cannot leave this subject without a brief 
comment u})on the social events themselves which I have 
been describing — events unexampled, 1 think, in the his- 
tory of any other people. The whole conduct of the 
miners, their voluntary adoj)tion, in the ab.sence of all 
municipal law, of rcgulation.s so just, wise, and equitable 
that neitlier the State nor the national government has 
attempted to improve them, exhibits in the most striking 
manner those qualities which lie at the i)a.>^is of the Amer- 
ican character. So long as these qualities last, so long as 
American citizens, individually or collected into commu- 
nities, possess and act upon these conservative tendencies, 
the liberties, safety, and perpetuity of the nation n-^t upon 
a certain and immovable foundation." '^ 

Next to the miners, and forming a large i)art of them, 
was another class rtMpiiring protection — that of jtoor 
debtors. Of the thou.sands wiio rushed to California in 
the early days, a large pro|)ortion were men who had met 
with reverses of fortuni' in the older Stati's. Many were 
utterly broken down; and, sick at lu'art.and often sick in 
bodv, they had .sought a new Held in hope to begin life 
anew. It was all-important tliat they should not have 
their hands tied at the very ix'ginuing: that they should 
not lind, on landing in their new home, that they were 
pursued bv prosecutions, and thiii- liiile means taki'U 
from theiii. In the older States there were laws exempt- 
ing certain etl'ects of a debtor. liut these exemptions 
were verv small. i'lie workers who had come to build 



25 

iij) an empire on the Pacilic Coast needed something 
more. Strong-limbed mechanics might as well be bound 
ill hands and feet as deprived of tools to work with. 
The farmer needed his plow and his oxen, the surgeon 
his instruments, and the lawyer his library. To meet all 
these cases, Mr. Field drew a provision more comprehen- 
sive than had ever been framed before, exempting from 
forced sale under execution the following property of 
judgment debtors, except where the judgment was recov- 
ered for the purchase-money of the articles, viz: 

" 1. Chairs, tables, desks, tiud books, to the value of one hun- 
dred dollars. 

"2. Necessary household, table, and kitchen furniture, includ- 
ing stove, stove-pipe, and stove furniture, wearing apparel, beds, 
bedding, and bedsteads, and provisions actually provided for in- 
dividuals or family use sufficient for one month. 

"3. Farming utensils, or implements of husbandry; also two 
oxen, or two horses, or two mules, and their harness, and one cart 
or wagon, and food for such oxen, horses, or mules for one montli. 

" 4. The tools and implements of a mechanic necessary to carry 
on his trade, the instruments and chests of a surgeon, physician, 
surveyor, and dentist, necessary to the exercise of their professions, 
with their professional library, and the law libraries of an attor- 
ney or counsellor. 

"5. The tent and furniture, including a table, camjj-stools, bed 
and bedding, of a miner; also his rocker, shovels, w^heelbarrow, 
spade, pumps, and other instruments used in mining, with provis- 
ions necessary for his support for one month. 

" 6. Two oxen, or two horses, or two mules, and their harness, 
furniture, and one cart or wagon, by the use of which a cart man, 
teamster, or other laborer habitually earns his living; and food 
for such oxen, horses, or mules for one month ; and a horse, harness, 
and vehicle used by a physician or surgeon in making his profes- 
sional visits. 

"7. All arms and accoutrements required by law to be kept by 
any person." 

This comprehensive provision spread a broad shield of 

protection over every honest man who was willing to 

work. 

4 



26 

"The fundamental principle of the protection proposed 
by Mr. Field," says Professor Pomeroy, '■ was, that every 
person, in addition to those articles necessary for individ- 
ual ])reservation, such as clothing, reasonable houseiiold 
furniture and effects, and the like, sliould be secured in 
the possession and use of those things by which, as neces- 
sary means and instruments, he pursues his profession, 
trade, business, or calling, whatever it may be, and 
acquires the ability of paying the demands of his cred- 
itors. This law, therefore, exempts, not only household 
furniture and the like, but the implements, wagons, and 
teams of a farmer, the tools of a mechanic, the instru- 
ments of a surveyor, surgeon, and dentist, the professional 
library of a lawyer and a })hysician, the articles used by 
the miner, the laborer, &c. In this connection it should 
also be stated that, though not its author, Mr. Field was 
a most strenuous supporter of the Homestead Bill, and 
was mainly instrumental in extending the exemptions 
originally proposed from three thousand to five thousand 
dollars. At that time there was no exemption whatever 
of personal property in California, and none equally ex- 
tensive to be found in the previous legislation of any State 
of the Union. It is understood by those who are familiar 
with Judge Field that he looks back with greater satisfac- 
tion u|)on the exemption system whicli he thus creati-il 
than upon any other of his legislative work." 

Mr. l^'icld was a member of the Judiciary Committee, and 
his work natui'ally I'elated mainly to the administration 
of justice. "Among the most important of the measures 
drawn up by liim," says Prof. Pomeroy,* "was a bill 
concerning the judiciary of the State. The act was 
general, dealing with the whole judicial system, and re- 
quiring great hihor in its ])r('j)aration. It coin])K'tely 

* .I<ilm Norton Pomeroy, LL.D., 1'rolV.s.sor of Law in tlie Univrrsit.v of 
Caliloriiia, wn>t»' a Konii-what elaborate review of tlie eareer of .Iii<l>;o 
Field, iw a Lej^i.slator, State Judge, and .lustiee of the Supreme t ourt 
of the United State.s, from which the ahove is taken. 



27 

reorganized the judiciary, and defined and allotted the 
jurisdiction, powers, and duties of all the grades of courts 
and judicial officers. An act passed in the subsequent 
session of 1853, revising and amending in its details the 
original statute of 1851, was also drawn up by him, 
although he was not then a member of the Legislature. 
The system then planned and establislied in 1851, and 
improved in 1853, and again in 1862, to conform to the 
constitutional amendments of the previous year, was 
substantially adopted in the codes of 1872, and continued 
in operation until it was displaced by the revolutionary 
changes made in the new constitution of 1879-'80. In 
connection with this legislation affecting the judiciary, he 
also drafted and procured the passage of an act concern- 
ing county sheriffs, defining all their official functions 
and duties; an act concerning county recorders, creating 
the entire system of registry which has since remained 
substantially unaltered ; and an act concerning attorneys 
and counsellors at law, by which their duties were de- 
clared and their rights were protected against arbitrary 
proceedings by hostile judges. He also prepared and 
introduced two separate bills to regulate the civil and 
criminal practice. These acts were based upon the Code 
of Civil Procedure and the Code of Criminal Procedure 
proposed by the New York commissioners, but they con- 
tained a great number of changes and additions made 
necessary by the provisions of the California Constitution, 
and by the peculiar social condition and habits of the 
people. They were by no means bare copies taken from 
the New York codes, since Mr. Field altered and recon- 
structed more than three hundred sections, and added 
over one hundred new sections. The two measures were 
generally designated as the Civil and the Criminal Prac- 
tice Acts. They were subsequently adopted by the other 
States and Territories west of the Rocky Mountains. 
They continued, with occasional amendments, in force in 
California until the present system of more elaborate 



28 

codes was substituted for them in 1S72; and even this 
change was more in name than in substance, since all 
their provisions substantially reai^pear in some one of 
these codes." 

In the Civil Practice Act he incorporated the provisions 
above mentioned respecting mining claims, and exempt- 
ing certain articles of property of judgment debtors from 
forced sale under execution, both of which have become 
permanent features of the legislative policy of California. 

But to enumerate all the acts framed by this indefati- 
gable legislator would rccpiire us to write the hi.story of 
the Legislature itself during that memorable session. 
Says one who was familiar with all the steps taken in 
that founilinLi, ol' a < "oniiiionwcalth : 

"The session of IfSol was the most imjiortaiit in the history of 
the State. It was the first one held after the admission of C'ali- 
fi)rnia into the TnidM, and some of the hest timbers of the new- 
governmental structure are the handiwork of Mr. Field. His 
labors exhil)ite(l great devotion to the public service, untiring 
industry, and a high sense of the responsibility of a ])nl)lic officer. 
Many had hills were defeated through his influence and many 
defective ones amended by his suggestions. He was .seldom 
absent from his seat; he carefully watched all measures; and 
there were few debates in which he did not jiarticipate. Such is 
the universal testimony of all the survivors of the legislative body 
of I80I, and its truth is established by the jounud nf the a.<sem- 
blv and the papers of the time." 

.\t tlic close of tile lA'gislatui'c .Mi\ I'itid i-clurncd to 
Marysvillc. lie Imd adiK'd to bis i-cputatioii. but in other 
respects his fortunes were at a low I'bb. Ills le^al prac- 
tice had been broken up by a rufliaii on ilie beiuji, and 
he was as j)oor as wlien lie laiidrd in San brancico with 
but ten dollars in bis pocket, and lie had to ask credit 
Ibi- a week's board. Ibit this judicial rullian was now 
gone, and be bail at last a clear tield bel'ore him. and 
soon the saint' aliility which he had shown in the Legis- 
lative As.^embly gave him a conspicuous place at the bar. 
The next six years, which were tk'Voted to hi.-- profession 



29 

were years of success in every respect. His practice be- 
came very large. Indeed, one who watched his progress 
during those years said: "His practice was as extensive, 
and probably as remunerative, as that of any lawyer in 
the State." The same careful observer thus analyzed the 
secret of his success : 

"He was distinguished at the bar for his fidelity to his clients, 
for untiring industry, great care, and accuracy in the j)reparation 
of his cases, uucomiuon legal acumen, and extraordinary solidity 
of judgment. As an adviser^ no man had more the confidence of 
his clients ; for he trusted nothing to chance or accident when 
certainty could be attained, and felt his way cautiously to his 
conclusions, which, once reached, rested upon sure foundations, 
and to which he clung with remarkable pertinacity. Judges 
soon learned to repose confidence in his opinions, and he always 
gave them the strongest proofs of the weight justly due to his 
conclusions." 

Thus established in the high esteem of the profession 
and the public, he had an assured future before him. 
He was universally recognized as among- the leaders of 
the bar. Had he chosen thus to continue at the bar, 
there seemed to be nothing of success or of fortune which 
was not within his reach. It was at this moment, when 
his prospects were at the brightest, that his professional 
career was interrupted by his elevation to the bench. 

In 1857 he was elected Judge of the Supreme Court of 
the State for the term of six years, commencing January 
1, 1858. There were two candidates besides himself be- 
fore the people, and 93,000 votes were polled. He re- 
ceived a majority of 36,000 over each of his opponents, 
and 17,000 over them both together. His duties began 
even before his regular term of office. In September of 
that year the Chief Justice of the court, Hugh L. Murray, 
died, and one of the Associate Judges was appointed to 
fill the vacancy created in the court, though Mr. Terry, 
being the senior associate, succeeded to the Chief Justice- 
ship. This appointment left the remainder of the Asso- 



30 

ciate Judge's term of service, which extended to the 
following January, unoccupied, and Mr. Field was ap- 
pointed by the Governor of the State — a political op})o- 
nent — to till it. He accepted the appointment, and took 
his seat on the bench October 13, 1857. He held the 
oftice of As.sociate Judge until the resignation of Chief 
Justice Terry in September, 1859, when he became Chief 
Justice, and so continued as long as he remained on the 
bench of California. 

The appointment of Judge Field to the bench neces- 
sitated his change of residence from Marysville to Sacra- 
mento. The latter city was the capital of the State. The 
.sessions of the Supreme Court were held there, and there 
chambers for the judges were provided. As soon, there- 
fore, as he could arrange his private business at Marys- 
ville he removed to Sacramento, but he left Marysville 
with much regret.* He had passed many years there 
happily and had made many warm friends, for whom he 
always retained pleasant recollections and great regard. 
While the people there were, as a general rule, peaceful in 
their conduct and constituted a prosperous and moral com- 
munity, there were some of a different temperament and 
disposition. Difficulties not uncommon in new settle- 
ments sometimes arose, leading to unpleasant and danger- 

*The Jud^e in his "Reminiscences" thus speaks of Marysville: "I 
had seen it [Marysville] ^rrow from a collection of tent.s with a few iinn- 
dred occupants to a town of substantial huildinjis, witli a population 
of from eijiht to ten thousand iuliahitant.s. From a mere lamliii'i for 
steamers it had become one of the most imp(Utaut jtlaces for business in 
the interior of the State. When I left it was tlu* depot of merchandise 
for the country lyinjr north and east of it; and its streets pre.sented a 
scene of bustle and activity. Trains of wai;ons and animals were con- 
stantly leavin;; it witli ;i(>o(ls lor the mines. Its mercliaut.s were ;jen- 
erully prosperous; some of tliem were wealtliy. Its bankers were men 
of credit tlirou^-iioiit the State. Steamers |)iied daily between it and 
Sacramento, and stan<s ran to all parts of the country, and arrived ev«"ry 
liour. Two daily newspapers were publisiied in it. Schools were opened 
and fully altrudcd. Churches of dilVerent <h*noininations were erected 
Hud tilled with worshippers. Institutions of benevolence were founded 



31 

ous collisions. The Judge avoided all such collisions as 
much as possible, consistently with proper respect for him- 
self. In his contest with the ruffian judge, Turner, referred 
to above, he had laid down a line of conduct to pursue to- 
wards all persons with whom he should come in contact, 
that is, to treat them courteously, so far as such treatment 
was possible with the maintainance of his own just rights 
and a proper self-respect; but not to cross the streets or 
turn a corner to get out of the way of any one because 
of his threats of violence or disposition to quarrel — to ex- 
cuse always an unintentional injury, but not to permit 
onp to step on his toes by accident more than twice in 
immediate succession. Seeking to avoid, but never 
shrinking from a collision when forced on him, he 
passed the seven years of his life in Marysville with l)ut 
few personal difficulties, and they ended in such a way 
that their renewal was not earnestl}'^ sought by the as- 
sailants. 

He wa*s received in Sacramento by its citizens with 
consideration and courtesy, and resided there during the 
whole period he held his position on the State bench, 
which was over five years and a half, and during that 
perio-1 received the same consideration and courtesy. 
Whilst residing there he became acquainted with Miss 

and supported. A provident city government and a vigorous police pre- 
served order and peace. Gambling was surpressed, or carried on onl}' in 
secret. A theatre was built and sustained. A lecture-room was opened 
and was always crowded when the topics presented were of public inter- 
est. Substantial stores of brick were put up in the business part of the 
city, and convenient frame dwellings were constructed for residences in 
the outskirts, surrounded with plats tilled with trees and flowers. On 
all sides were seen evidences of an industrious, prosperous, moral, and 
happy people, possessing and enjoying the comforts, pleasures, and lux- 
uries of life. And they were as generous as they were prosperous. Their 
hearts and their purses were open to all calls of charity. No one sulfer- 
ing appealed to them in vain. No one in need was turned away from 
their doors without having his necessities relieved. It is many years 
since I was there, but I have never forgotten, and I shall never forget, 
the noble and generous people that I fouud there in all the walks of life." 



32 

Sue Virginia Swearingen, a resident of San Francisco, and 
they were married on the 2d of June, 1859, an union 
which has been to him a constant source of happiness. 

In the exchange of positions from the bar to the bench 
Mr. Field left the sphere in which he was at home, and 
which might have seemed most attractive to his ambition. 
To an aspiring lawyer there is no fame so dear as that of 
a great advocate. One who has always gained success in 
this arena, who has proved his power over courts and 
juries, is very reluctant to turn aside from this brilliant 
career. He felt a natural regret that he could no more 
take part in these exciting contests, even though it were 
to exchange his place for the more calm and dignified 
position of a judge. But in the condition of California 
at that time there was perhaps no officer of the State so 
much needed to strengthen law and order — the founda- 
tions of the Commonwealth — as an u])right. able. and cour- 
ageous judge. The bar ol' Calitbi'nia CDiitaintMJ anuniber 
of men of elocjuence and ability, fluent speakers and de- 
baters, ready in wit as in argument, who would run over 
a weak judge or a timid one. They now found in the 
seat of authority one whose clearness of mind and under- 
standing of the great principles of law could not be con- 
fused or deceived, and wlio. with tlie utmost courtesy of 
manner, united a firmness and courage nowhere more 
needed than on the bench. This combination of quali- 
ties insjiired respect for the judicial office and for the law 
whicli il rc])resented. Besides this, in California the laws 
themselves were unsettle^]. Succes.sive Legislatures had, 
indeed, passed volumes of enactments, but the force of 
these could only be deterniineil Wy adual decisions in the 
courts. It is well understood in law that the work of the 
legislator is incomplete until the judge conies to apply 
the acts which have been i)as.sed,and, in Scri|»tuit' phrase, 
"to give till' meaning and the interpretation thereof" 
The novelty of some of the cases presi'iited lor decision, 
and their extreme dillicultv, are such as onlv a lawver can 



33 

understund. I do not feel comi)etent to give an opinion 
on the numerous complexities which he was to disen- 
tangle, but will quote what was written of him afterwards, 
when he was about to retire from that court, by one who 
was for three years his associate in this work — Judge 
Joseph G. Baldwin : 

"When he came to the bench the calendar was crowded with 
cases involving immense interests, the most important questions, 
and various and pecidiar litigation. California was then, as now, 
in the development of her multiform material resources. The 
judges were as much pioneers of law as the people of setdement. 
To be sure, something had been done, but much had yet to be 
accom])lished ; and something, too, had to l)e undone of that which 
had been done in the feverish and anomalous period that had 
preceded. It is safe to say that, even in the experience of new 
countries, hastily settled by heterogeneous crowds of strangers 
from all countries, no such example of legal or judicial ditficul- 
ties was ever before presented as has been illustrated in the his- 
tory of California. There was no general or common source of 
jurisprudence. Law was to be administered almost without a 
standard. There was the civil law, as adulterated or modified by 
Mexican provincialisms, usages, and habitudes, for a great part 
of the litigation ; and there was the common law for anotiier part, 
but ivhut that was was to be decided from the conflicting decisions 
of any number of courts in America and England, and the va- 
rious and diverse considerations of policy arising from local and 
other facts. And then, contracts made elsewhere, and some of 
them in semi-civilized countries, had to be interpreted here. Be- 
sides all of which may be added that large and important inter- 
ests peculiar to this State existed — mines, ditches, &c. — for which 
the courts were compelled to frame the law, and make a system 
out of what was little better than chaos. 

" When, in addition, it is considered that an unprecedented 
number of contracts, and an amount of business without parallel, 
had been made and done in hot haste, with the utuiost careless- 
ness; that legislation was accomplished in the same way, and j>re- 
sented the crudest and most incongruous materials for construc- 
tion ; that the whole scheme and organization of the government, 
and the relation of the departments to each other, had to be ad- 
5 



34 

justed by judicial construction — it may well be conceived ■^•hat 
task even the ablest jurist would take upon himself when he 
assumed this office. It is no small compliment to say that Judge 
Field entered upon the duties of this great trust with his usual 
zeal and energy, and that he loaves the office not only with greatly 
increased reputation, but that he has raised the character of the 
jurisprudence of the State. He has, more than any other man, 
given tone, consistency, and system to our judicature, and laid 
broad and deep the foundation of our civil and criminal law. 
The land titles of the State — the most important and permanent 
of the interests of a great Commonwealth — have received from 
his hand their permanent protection, and this alone should entitle 
him to the lasting gratitude of the bar and the people." 

The most important land cases in which he delivered 
the opinion of the court while on the State bench are 
mentioned in a note below.* A more particular notice 
may be taken of one or two of them from the peculiarity 
of the questions presented, such as the alleged owner.ship 
by the State of the gold and silver in the lands of private 
individuals, and the right of maintaining a possessory 
action for lands, the ownershij) of which was in the 
United States or in the State. 

In 1853, in Hicks v. Bell (3 Cal. 220), the Supreme 
Court had decided that the State, by virtue of iier sover- 
eignty, owned the mines of gold and silver within her 
limits, wherever found, even in the lands of private indi- 
viduals. This decision was founded upon the case of the 
Queen /•. Earl of Northumberland, reported in Plowden, 
where it was iield that the King owuimI the mines and 
ores of gold and silver toiiiid within the realm, in what- 
soever land they existed. The Supreme Court of Cali- 
fornia, without considering the reasons assigned in the 

* Ferris r. Coover, (10 Cal. r.8i); ) WatiTiiiuii r. Sinitli. (13 Cnl. :r73 ; ) 
Moore r. Wilkinson, (13 Id. 47H; ) Hidilli«-H()<;<;s r. Mori-e*! Mining t'o., 
(14 Cal. 3(Jl-3(;(i;) Stark r. Harrett, (1.') Cal. ItGi ; i Mott r. Smith, (1(5 
Cal. .'i34 ; ) Coryt-ll r. Cain, ( 16 Iil. CMl ; ) 'IVsclicniaclHT r. Tlionijisdn, i IH 
Cal. 20;) I et-w r. Clark. 'IH Cal. .'')().'■); VJO Cal. 411 ; | Kstratia r. Mmpliv. 
(IH Cal. 2(»H; ) Moort* r. Sniaw, and Frt-niont r. Fowk-r. (17 Cal. 20(i. i 



case in Plowden, adopted its conclusion, and, as the gold 
and silver in the British realm were held to belong to 
the Crown, it was concluded that such metals within the 
limits of a State must belong, in this country, to the 
State. "The State, therefore," said the court, " has solely 
the right to authorize them — the mines of gold and 
silver — to be worked, to pass laws for their regulation, to 
license miners, and to fix such terms [and conditions as 
she may deem proper, to the freedom of their use. In 
the legislation upon this subject she has established the 
policy of permitting all who desire it to work tlie mines 
of gold and silver, with or without conditions, and she 
has wisely provided that their conflicting claims shall be 
adjudicated by the rules and customs which may be es- 
tablished by bodies of them working in the same vicinity." 
The miners, under this decision, assumed in many in- 
stances the right to invade the lands of private proprie- 
tors for the purpose of mining, as freely as they entered 
upon the public lands. It was a part of the policy of 
the State to encourage a development of the mines, and 
they claimed the right to assist in that way in such de- 
velopment under the sanction of that decision. The 
trouble and vexation and spoliation arising from such 
invasion led the court, in the subsequent case of Stoakes v. 
Barrett (5 Cal. 37), to modify this ruling, and to hold 
that, though the State was the owner of the gold and 
silver found in the land of private individuals as well 
as in public lands, yet to authorize an invasion of pri- 
vate property in order to enjoy a public franchise would 
require more specific legislation than any resorted to. In 
the case of Biddle-Boggs v. Merced Mining Company 
(14 Cal. 279, 379), which came before the court in 1859, 
the plaintiff brought an action for the recovery of land 
covered by a patent of the United States, issued upon 
the confirmation of a Mexican grant. The defendant 
claimed the existence of a license to extract the gold and 
silver found in the land notwithstanding the })atent, 



36 

under the decision of the State. The existence of this 
license was repudiated by the court, and. in speaking of 
it.. Judge Field said: "There is gold in limited quantities 
scattered through large and valuable districts, where the 
land is held in private proprietorship, and, under this 
pretended license, the whole might be invaded, and for 
all useful purposes destroyed, no matter how little re- 
munerative the product of the mining. The entry might 
be made at all seasons, whether the land was under cul- 
tivation or not. and without reference to its condition, 
whether covered with orchards, vineyards, gardens, or 
otherwise. Under such a state of things the proprietor 
would never be secure in his possession, and without 
security there would be little development, for the incen- 
tive to improvement would be wanting. What value 
would there be to a title in one man with the right of 
invasion in the whole world? And what property would 
an owner possess in mineral land, the same being inetfect 
to iiim poor and valueless just in proportion to the actual 
richness and abundance of its products? There is some- 
thing shocking to all our ideas of the right of property 
in the proposition that one man may invade tiie posses- 
sions of another and dig up his tields and gardens, cut 
down his timber, and occupy his land under the pre- 
tense that he has reason to believe there is gold under 
tlie surface, or, if existing, that he wishes to extract and 
remove it." 

In Moore v. Smaw and Fremont r. Fowler (17 C'al. 
190) the doctrine that the precious metals belonged to 
the State by virtue of her sovereignty was fully ex- 
j»lodod. Ill that case Judge Field thus defined what 
was meant by the sovereignty of a State : "Sovereignty.'* 
he .^lid, "is a term use«l to express the supreme political 
authority of an independent State or nation. Whatever 
rights are esst-ntial to the existence of this authority are 
rights of sovereignty. Thus the right to declare war. to 
make treaties of peace, to levy taxes, to take private prop- 



erty for public uses — termed the right of eminent do- 
main — are all rights of sovereignty, for they are rights 
essential to the existence of supreme political authority. 
In this country, this authority is vested in the people, and is 
exercised through the joint action of their Federal and 
State governments. To the Federal government is dele- 
gated the exercise of certain rights and powers of sover- 
eignty, and, with respect to sovereignty, rights and powers 
are synonymous terms ; and the exercise of all other 
rights of sovereignty, except as expressly prohibited, is 
reserved to the people of the respective States, or vested 
by them in their local governments. When we say, 
therefore, that a State of the Union is sovereign, we only 
mean that she possesses supreme political authority, ex- 
cept as to those matters over which such authority is 
delegated to the Federal government or prohibited to the 
States : in other words, that she possesses all the rights 
and powers essential to the existence of an independent 
political organization, except as they are withdrawn by 
the provisions of the Constitution of the United States. 
To the existence of this political authority of the State — 
this qualijied soiereignty or any part of it — the ownership 
of the minerals of gold and silver found within her limits 
is no way essential." 

In Coryell v. Cain (16 Cal. 572), the principle that had 
been adopted in suits for mining claims, ascribing to the 
first appropriiitor of mines, who followed up his discovery 
by actual development of the mine, the better right to 
the same, was held to apply to actions for the possession 
of lands, the title of which was in the United States 
or in the State, in advance of any legislation for its 
use or Side. Thus, in this case, which was for the posses- 
sion of land the title of which was assumed to be in this 
condition. Judge Field said: "It is undoubtedly true, 
as a general rule, that the claimant in ejectment must 
recover upon the strength of his own title, and not upon 
the weakness of his adversarv's. and that it is a sufficient 



38 

answer to his action to show title out of him and in a 
third party. But this general rule has, in this State, from 
the anomalous condition of things arising from the })ecu- 
liar character of the mining and landed interests of the 
country, been to a certain extent qualified and limited. 
The larger portion of the mining lands within the .State 
belong to the United States, and yet that fact has never 
been considered as a sufficient answer to the prosecution 
of actions for the recovery of portions of such lands. 
Actions for the possession of mining claims, water privi- 
leges, and the like, situated upon the public lands, are 
matters of daily occurrence, and if the proof of the para- 
mount title of the government would operate to defeat 
them, confusion and ruin wcnild be the result. In de- 
termining controversies between parties thus situated, 
this court proceeds upon the presumption of a grant from 
the government to the first appropriator of mines, watir 
privileges, and the like. This presumption, which would 
have no place for consideration as against the a.ssertion 
of the rights of the superior pru[)rietor, is held absolute 
in all those controversies. And with tlie })ublic lands 
which are not mineral lands, the title as between citizens 
of the State, where neither connects himself with the 
government, is considered as vested in the first possessor, 
and to j)roceed from him." 

The doctrine of this decision was of great l>enelit to tlu' 
occupants of the public lands in advance of nu'asurc's l)y 
the government for their .sale. It j)re.^erveil peace among 
them and gave them jirotection until the government 
slnuild (-onic forward and a.*<sert its superior title. 

Numerous cases, besides those to whieh reference is had, 
might be cited, not only concerning lands, but mortgages, 
the powers and liabilities of municipal corporations, and 
many otlui- -ulijects.* As stated in the work to wliicli 

' lUilli- Caiiiil ;iiiil Dill li Co. I . \:iii^;li:iii, 1 1 (ill. l.')!?; i Haktr r. H;ikfr. 
(KJ Id. 1^7;) I'itni- r. liohiiisdii, i i:{ M. lUJ; i lilaiidiiij; r. Hm r, (1:5 Id. 
343 ;j Kocii v. liriggn, [II Id. ~o6;) Noe i: Curd, (14 Id. oil;) Noriis f. 



39 

Professor Pomeroy's sketch is prefixed, they related to 
the claim of the State to five hundred thousand acres of 
land donated by the act of Congress of September 4, 1841, 
for purposes of internal improvement, and to its right to 
dispose of the lands in advance of the public surveys; — 
to contracts of the State for the support and labor of its 
convicts; — to the power of the courts to compel by man- 
damus officers of the State to do their duty ; — to the con- 
flicting rights of miners to the use of the water of streams 
in the mountains for the purpose of mining ; — to the right 
of the wife to a share of the community property under the 
law of Mexico and the law of California; — to the title of 
the city of San Francisco to lands within her limits as suc- 
cessor of a former Mexican pueblo and under the grant 
of beach and water lots by the State in 1851 ; — to the 
construction of wills; — to the distinction between mort- 
gages and deeds of trust; and to a great number of other 
subjects. A citation is given in the note of several of 
these cases. 

As might be supposed, the fame of such judicial decis- 
ions could not be hid in a corner. They attracted marked 
attention in the Pacific States, where many similar cases 
were likely to arise for decision, and he was soon recognized 
as the first judicial authority on that coast. So universally 
was this conceded that when, in 1863, the increasing 
importance of those States led Congress to pass a law 
creating a new circuit on that coast, and a tenth Justice 
on the Supreme Bench of the United States, the whole 

Harris, (15 Id. 226; ) State of California v. McCauley, (15 Id. 429 ; ) Hol- 
liday v. Frisbie, (15 Id. 630;) McCauley v. Brooks, (16 Id. 12; ) Koppi- 
kus t). State Capital Commissioners, (16 Id. 249;) Brumagim v. Tilling- 
hast, (18 Id. 266;) Doll v. Meador, (16 Id. 295 ; ) Halleck v. Mixer, (16 
Id. 575.) McCraken v. San Francisco, (16 Cal. 591 ; ) Grogan v. The Same, 
(18 Cal. 608 ; ) Pimental v. The Same, (21 Cal. 359 ; ) Argenti v. The Same, 
(16 Cal. 282 ; ) Zottman v. The Same, (20 Cal. 96 ; ) McMillan v. Richards, 
(9 Cal. 365; ) Nagle v. Macy, (9 Cal. 426 ; ) Johnson r. Sherman, (15 Cal. 
287;) Goodenow z). Ewer, (16 Cal. 461;) Perry i>. Washburn, (20 Cal. 
318.) 



40 

delegation from the Pacific — Senators and Representa- 
tives, Democrats and Republicans — went in a body to 
President Lincoln and urged the appointment of Judge 
Field. Others were mentioned, but no other name was 
pressed by the bar of California for the position, for no 
other man was thought so eminently fitted for it. He was 
acordingly nominated by the President, and confirmed 
unanimously by the Senate. His removal was a great 
loss to the bench of California. "By this event," said Judge 
Baldwin, "the State has been deprived of the ablest jurist 
who ever presided over her courts." 

At the time of his nomination for a Justice of the Su- 
preme Court of the United States his name was {tending 
before the Senate upon a nomination for Circuit Judge of 
the local circuit, on the coast, consisting only of the State 
of California, and of wiiich Hall McAllister had been the 
judge, he having resigned. The creation of the new cir- 
cuit on the coast did away with the existence of the local 
circuit. 

Judge Field's commission as a Ju.stice of the Supreme 
Court was dated on the 10th of March, 1S03, but he did 
not take the oath of office till the 20tii of May. For this 
there was a reason of convenience and a reason of .senti- 
ment. A great nuiuber of cases were pending in the 
Sui)reme Court of California, in which he had heard the 
arguments, and he desired to have them deeided before 
he left the bench. IJut there was also another reason. 
The '20th of May was his father's birthday, and he th«)Ught 
that the dear old patriarch, then living in New England, 
who on that day would complete his eight-secontl year. 
Would be gratified to learn that on the same day his son 
had become a Justice of tlie Supreme Court ofth(> Cniti'd 
States. 

As the court was not in session at the time he took the 
oath of oliiee, he was assigned to the I'enth Circuit by a 
special designati(tn of the President. maiK' on the 2lM of 
June, ISn.'i. A copy of that orth r is louiul in the 'Jil of 



41 

Black's Reports at page 7. The circuit at that time con- 
sisted of the States of California and Oregon. When 
Nevada become a State it was addetl to the circuit. 
When the act creating indei)endent Circuit Judges was 
passed, in 18(39, each of the Justices was required to attend 
a term in each district of his circuit once in every two 
years. Up to the time of the creation of the Circuit 
Court of Appeals, in 1891, Mr. Field attended, each year, 
a term of every District Court in his circuit, when there 
was any business requiring his consideration, after his ap- 
pointment, with the exception of three summers, during 
two of which he was absent in Europe, and during one 
he was not in good health. Since the creation of the 
Circuit Court of Appeals he has not been required, as lie 
construes the law, to attend at a Circuit Court in each 
district. 

Immediately after receiving his assignment he entered 
upon the discharge of his duties, and, in October follow- 
ing, he presided at a term of the Circuit Court of the 
United States held at San Francisco, at which certain 
parties — Greathouse, Harpending, Rubery, and others — 
were brought to trial for treason against the United 
States. It appeared that Harpending, a native of Ken- 
tucky, and Rubery, a native of England, had contem- 
plated fitting out a privateer, at the city of San Fran- 
cisco, for the purpose of taking several of the mail 
steamships plying between that port and Panama, and 
other vessels. With this object in view, Harpending had 
gone across the country to Richmond, Virginia, and pro- 
cured from Jefferson Davis, the President of the Con- 
federate States, a letter of marque, authorizing him to 
prey upon the commerce of the United States, and to 
burn, bond, or take any vessel of their citizens. He also 
received a letter of instructions directing him how to act, 
and containing a form of bond in case any prizes taken 
should be bonded. Upon his return to San Francisco he 
and Rubery made arrangements for the purchase of such 
6 



42 

a vessel as would suit their [lurpose, but these arrange- 
ments failed on account of the dishonor of the drafts 
drawn for the purciiase money by Rubery, and the con- 
sequent want of funds. The}' also made a voyage to 
Cerros Island for the purpose of examining into its fitness 
as a depot and the rendezvous whereto take the Panama 
steamers. In January or February of 1863, they made 
the acquaintance of parties in San Francisco who fur- 
nished the money and fitted out a vessel by the name 
of J. M. Chapman, to cruise against the vessels and 
commerce of the United States, and carry out their scheme 
of privateering, and furnished it with arm.^ and ammu- 
nition for that purpose and obtained a suital)le number 
of men for a crew, the arms and aininuuition being 
packed in cases piarked " oil mills and machiner}'," 
Greathouse, one of the conspirators, giving out that 
he was acting in the interest of the Liberal party of 
Mexico. The plan of the cruise was to sail from San 
Francisco on Sunday, March 15, 1803, to the Island of 
Guadalupe, wdiich lies some three hundred miles off the 
coast of California, (here land llarpendinu- and the fight- 
ing men, who were to be siii})ped on the night of Satur- 
day, March 14, thence to proceed to Man/.anillo, there 
to discharge such freight as might be taken, then re- 
turn to Guadalupe and fit the schooner for i)rivateering 
purposes; then to proceed again to Manzanillo, where 
the men were to be enrolled and their names inserted 
in the letter of manpie, a copy of wliieli was then 
to be forwarded to the government of the Confederate 
States. Tlieir j)lan was first to ca})ture a steamer, bound 
from San l"'rancisco to ranama, on its arrival at Man/.a- 
nillo; land its passengers on the coast of Mexico, and 
with the steamer thus taken capture a .second steamer. 
Next, to seize a vessel from San P'rancisco, then engaged 
in recovering treasure from the wreck of the sti'ami-r 
Golden Gate; then to go to tlii- Chincha Islands and 
Imrn I'niletl States vessels there, and tlienci' to the 



43 

China Sea, and finally to the Indian Ocean and join Ad- 
miral Semmes of the Confederate Navy. In pursuance 
of this plan, and to prevent suspicion, the schooner was 
put up for Manzanillo. A partial cargo was shipped on 
board, and Law, one of the conspirators, cleared the vessel 
at the custom-house for that port, signing and swearing 
to a false manifest. On the night of March 14, in ac- 
cordance with the plan arranged, all but one of the parties 
went on board; fifteen persons, who had been employed 
by Harpending as privateersmen, were placed in the 
hold in an open space left for them in stowing the cargo, 
directly under the main hatch. The only person absent 
was Law, who remained on shore, with the understand- 
ing that he should be on hand before morning. It after- 
ward appeared that he had become intoxicated and did 
not get down to keep his engagement until after the 
schooner had been seized. During the evening Rubery 
had heard rumors that the vessel was to be overhauled, 
and as the morning approached and Law did not appear, 
he proposed sailing without him. At daylight. Law 
being still absent, Libby, another of the conspirators 
and acting captain, cast off the lines and began working 
the schooner out from the wharf into the stream. After 
the vessel had thus started she was seized by an officer 
of the United States, and the parties were taken to Alca- 
traz and confined. They were indicted by the grand 
jury of the United States Circuit Court for treason, under 
the act of Congress of July 17, 1862, for engaging in and 
giving aid and comfort to the then existing rebellion 
against the government of the United States. The trial 
lasted several days and excited a great deal of interest, 
being the first practical attempt to give assistance to the 
rebellion by an armed expedition fitted out in one of the 
ports of the United States. It gave the court an op})or- 
tunity of defining what constituted treason and giving 
aid and comfort to the enemy, and in what respect parties 
leagued in with the Confederates brought themselves 



44 

witliin tlie law. The parties claimed protection under 
the letter of marque which they had obtained, but the 
court instructed the jury that, if the parties indicted had 
obtained a letter of marque from the President of the so- 
called Confederate States, that fact did not exempt them 
from j)rosecution in the tribunals of the country for the 
acts charged in the indictment; that, if belligerent rights 
had been conceded to the Confederate States and to their 
citizens in arms as was claimed, such rights could not 
be invoked by persons entering into States which had never 
seceded, and secretly getting up hostile expeditions against 
our government and its authority and laws; that the local 
and temporary allegiance which every one, citizen or alien, 
owes to the government under which he, at the time, lives 
is sufficient in such case to subject him to the penalties 
of treason, 'lliv jury found the defendants guilty, and 
they were .sentenced to both fine and imi)risonment. 
One of the defi-ndants — Ihibory — was subseiiucntly par- 
doned by President Lincoln at the request of "■John 
Bright of England." The circumstances of the pardon 
were peculiar. The conspiracy to seize the steamers 
that plied between San Francisco and Panama, and 
land the ])assengers on the coast of Mexico, greatly 
incensed the people of San .Francisco, for, in addition to 
the loss of the large amount of treasure which each 
steamer carried, the landing of passengers in that region 
woulil have been the cause of the death of many of them. 
The usual iiunibtT of passengiTs in a steaniei- bt'tween 
San Francisco and Panama, at that time, exceeded 
a thousand. Some months after the conviction of the 
prisoners. Mr. Sunnier. Senatoi- from Massachusetts, re- 
ceived a letter from Mi-. ISright, asking for the pardon 
of Ivuberv. whose laiiiily relatives ri-sided in Birming- 
liaiii. which lie rcprcscnti'd in Parliament : and the 
Senator called upon .Judge I'ieltl. who had then ve- 
movefl (() Washington ainl taken lii< >eat <i!i the bench 
of the Supreme Court, to learn how siu-li a panlon 



45 

would be received in San Francisco. The Judge replied 
that he thought it would produce mucli irritation and 
angry feeling. Mr. Sumner then stated that, as it was 
the request of Mr. Bright, who had always been the tirm 
friend of America in the war then existing, and given 
his great influence to the support of our government, he 
would be glad to secure the pardon desired. The Judge 
then stated to Mr. Sumner that, if President Lincoln 
would put in his pardon that it was granted at the re- 
quest of "our good friend, John Bright, of England," 
there would be little complaint made in San Francisco at 
the act of clemency. Mr. Sumner so reported to Mr. Lin- 
coln, and the pardon was granted, with that language 
inserted. 

The new appointment obliged the removal of Judge 
Field from San Francisco to Washington, which now be- 
came his residence for the greater part of the year; but 
as he was assigned to the new circuit, consisting of the 
Pacific States, it was a part of his duty to return each 
summer to hold a term of the Circuit Court in California, 
Nevada, or Oregon, and sometimes in all of them. 

When he ascended the bench of the Supreme Court of 
the United States he took his seat in a company of illus- 
trious men. Taney was then Chief Justice, and though 
he had long passed his fourscore years, his mind did not 
fail with age, and he still continued to preside with the 
serenity of wisdom. He died the following year, and 
was succeeded by Chief Justice Chase. Tiiere sat, as 
Associate Justices, Wayne, Catron, Nelson, Grier, Clifford, 
Swayne, Miller, and Davis. The questions which came 
before this court were worthy of the dignity of such a 
tribunal. As observed by a legal writer: 

" Legal questions of a countless number and variety, affecting 
private rights, and involving every department of jurisprudence — 
common law and equity, admiralty, maritime and prizo law, patent 
law and copyright, the civil law as embodied in Ivouisiana and 
Mexican codes, statutes of Congress and of State Legislatures, 



•16 

everything excej)t pure matters of probate — may come before 
that court for adjudication. Probably no other single tribunal 
in the world is called upon to exercise a jurisdiction extending 
over so many different subjects, and demanding from its judges 
such a variety of legal knowledge. But the highest power of the 
court, that incident of transcendent importance which elevates it 
far above any other judicial tribunal, is its authority as a final 
arbiter in all c(mtroversies depending upon a construction of the 
United States Constitution, in the exercise of which exalted func- 
tions, as the final interpreter of the organic law, it determines the 
bounds beyond which neither the national nor the State govern- 
ments may rightfully pass. It is the unique feature of our civil 
polity, the element which distinguishes our political institutions 
from all others, the crowning conception of our sj'stem, the very 
kevstoue of the vast arch, upon which depend the safety and per- 
manence of the whole fabric, that the extent and limits of the leg- 
islative and executive powers, under the Constitution, both of the 
nation and of the individual States, are judicially determined by 
a body completely indei)endent of all other departments, conser- 
vative in its essential nature and tendencies, and inferior to no 
authority except the deliberate organic will of the people expressed 
thi-()UL;li the elective franchise." 

The vast conservative })Ower of this department of our 
Government, as well as the magnitude of the ([uestions 
submitted to its decision, was nevermore fully illustrated 
than in tlie cases whicli grew out of the Civil AVar and the 
legislation to wliieh it gave rise. One or two examples 
will illustrate tlic nature of these cases and of tlie (jues- 
tions involved. One of the first of these was the famous 
Milligan Case. In October, 1 SGI — six montlis before the 
close of the war — a man by the name of Milligan, a resi- 
dent (if I iidiaiia. was arri'sted by order of the military 
commander of the district ami thrown into i>rison. In 
the excitt'meiit of war the authorities were (lis|)osed to 
make tpiiek work of treason, ]iro\"ed oi- suspected, lie 
was almost immediately brought before a military c-om- 
mission eharge<l with conspiracy against the ( iovernment, 
all'ording aiil ami comfort to rebels, inciting to insurrec- 



47 

tion, disloyal practices, and violation of the laws of war, 
and was found guilty and sentenced to death by hanging. 
The proof may have been ample. No doubt he was a 
" rebel sympathizer," and may have been very open and 
bold in expressing his sympathy. But he was not a resi- 
dent of a State in rebellion, nor was he in the military 
or naval service or under military authority. Tlicre was 
no rebellion in Indiana, or state of siege, and there was 
no excuse for martial law. The courts were open, and of 
whatever offence he had been guilty he could be tried . 
and punished according to law. But this did not satisfy 
the eager spirit of many loyal men who would trample 
down all opposition to the government of the Union as 
they would trample down an army in the field. Even 
the good President Lincoln was so far governed by these 
considerations, that he approved the sentence and ordered 
it to be carried into execution, and the man would have 
been hung had not the Supreme Court stretched forth its 
powerful hand to save him from the scaffold. When the 
question was brought before that tribunal, the Justices 
were unanimous in decreeing that the man who had been 
so accused and condemned should be set at liberty. But 
five of the nine Justices (of whom Judge Field was one) 
went still farther, and in rendering their decision entered 
a solemn declaration in support of civil authority as 
against military tribunals, which is one of the most 
memorable decisions in the annals of the country. Re- 
ferring to this decision, in which he took part, Judge 
Field pays a high tribute to one of his associates : \ 

"The opinion was written by Mr. Justice Davis, and it will be 
a perpetual monument to his honor. It laid down in clear and 
unmistakable terms the doctrine that military commissions organ- 
ized during the war, in a State not invaded nor engaged in rebel- 
lion, in which the Federal courts were open and in the undisturbed 
exercise of their judicial functions, had no jurisdiction to try a 
citizen who was not a resident of a State in rebellion, nor a 
prisoner of war, nor a person in the military or naval service; 



48 

and that Congress could not invest them with any such power ; 
and that, in States where the courts were thus open and undis- 
turbed, the guaranty of trial hy jury contained in the Constitution 
was intcMKh'd for a state of war as well as a state of peace, and is 
equally binding upon rulers and people at all times and under all 
circumstances." 

Hardly had the excitement of this case subsided when 
the court was called upon to consider the famous Test 
Oath Case. In the Constitution of Missouri just ado[)ted 
liad \\fv\\ inserted a provision requiring, as a condition of 
liolding any ofhce of lionor, trust, or profit under the 
State, or of fiUing any one of numerous ])Ositions pre- 
viously t»pen to all. that the jiarty shouM take what was 
called the Irouelad Oath — that is, swear that he had never 
had any thin<j; to do with the rebellion, and had never 
favored it openly or secretly. Not only did the oath ex- 
tend to his acts, but to his secret motives and feelings. 
It contained more than thirty distinct affirmations, and 
seemed like a .series of tests framed by the Inquisition to 
search out a nian"s very .soul, and to ecjnviet him in spite 
of himself. If a man could not swear to each of the.se, 
the constitution did not permit him to hold any of tiie 
offices, trusts, or positions mentioned. Ileeoiildnot teach 
school; he could not i)ractice law; he could not be a trus- 
tee of a church or an officer of a corporation; he could 
not preach the Gospel; he could not administer the sacra- 
ments. It is hard to believe, in thi< time of the world, 
tiiat such provisions could be IdUiid in the Constitution 
or laws of any civilized country. They belong to the 
Dark Ages rather than \n the nineteenth eeiuury — to 
Spain and liussia rather than to tree America. ^'et 
there they were, in the Constitution of Missouri. The 
only apology U>v -ndi pr(i\ isioiis is that tlu- Constitutitni 
was framed under the angry excitement caused by the 
Civil War. Their rigid enfon-iMuent was nt'Virtheless at- 
tempted. 

.\ priest of the Komau Catlnilie I'hurch in that State. 
Father CuMimings, was indicted for the crime of leaching 



49 

and preacliing, as a priest and minister of that religious 
denomination, without taking this oath, and convicted, 
and sentenced to pay a fine of five hundred dollars, and 
to be committed to jail until it was paid. The case was 
appealed to the Supreme Court of Missouri, which affirmed 
the judgment, and then, as the last resort, it was carried 
to the Supreme Court of the United States. Of the nine 
judges sitting on that tribunal, in that sanctuary of justice, 
four voted to sustain that legislation. Judge Field gave 
the casting vote against it, and wrote the opinion in burn- 
ing words, by which those proscriptive provisions were 
annulled, and declared to be beyond the power of a State 
of the American Union to enact.* 

*Iu his opiuion the Judge said: "The oath tlins required is. lor its 
severity vvitliout any precedent tiiat we can discover. In tlie tir.st place, 
it is retrospective; it embraces all the past from this day ; and, il taken 
years hence, it will also cover all the intervening period. In its retro- 
spective feature we believe it is peculiar to this ccnintry In England 
and France there have been test oaths, but they were always limited to 
an affirmation of present belief, or present disposition towards the gov- 
ernmeut, and were never exacted with reference to particular instances 
of past misconduct. In the second place, the oath is directed not 'uerely 
against overt and visible acts of hostility to the government, but is in- 
tended to reach words, desires, and sympathies, also. And, in the third 
place, it allows no distinction between acts springing from malignant 
enmity and acts which may have been prompted by charity or affection 
or relationship. If one has ever expressed sympathy with any who were 
drawn into the rebellion, even if the recipients of that sympathy were 
connected by the closest ties of blood, he is as unable to subscribe to the 
oath as the most active and the most cruel of the rebels, and is equally 
debarred from the offices of honor or trust, and the positions and emi»loy- 

nients specified." 

»/ And again : " The provision of the Federal Constitution [against the 
pas.sage of an ex post fndo law] intended to secure the lilierty of the 
citizen, cannot be evaded by the form in which the power of the Htate is 
exerted. If this were not so, if that which cannot be accomplished by 
means looking directly to the end, can be accomplished by indirect 
means, the inhibition may be evaded at pleasure. No kind of oppression 
can be named, against which the framersof the Constitution intended to 
guard, which nuiy not be effected. Take the case supposed i)y counsel, 
that of a man tried for treason and acquitted, or if convicted, pardoned; 
the legislature uuiy nevertheless euact that, if the person thus ac(iuitttd 



50 

But wc liave no space to follow tlie cases growing out of 
the war which sprung up in great number and variety : 
such as cases of pardon and amnesty ; cases of confiscation 
of property; cases involving the question of the legisla- 
tive power of the insurgent States during the war, and 
the extent to which the Confederate government should 
be regarded as a de facto government. The policy of the 
Reconstruction Acts of Congress, by which the South was 
divided into military districts, and placed under the 
government of military officers, was odious in the extreme 
to the Judge. He thought it served only to prolong the 
irritations of the war, and to give up a whole section of the 
country, which had already been swept with destruction, 
to the anarchy of inisnik'. His conti'olling desire was 
to have the government brought back to the rules and 
methods of peace. In his view it was time that the reign 
of arms should cease, and the reign of law and order 
begin. 

But the Reconstruction Acts were never brought to 
the test of judicial decision, and from their nature could 
not be. An attempt was made to obtain a decision 

or pardoned does not take an oatli that he never lias committed tlie acts 
oliarf:t'(l aj;ainst liim, he shall not be permitted to hold any oflice of honor 
oi- trust or prolit, or pnrsue an}' avocation in the Slate. Take the case 
belore us; the Constitution of Missouri, as we have seen, excludes, on 
failure to take the oath prescribed .by it, a lar-je class of persons within 
her borders from numerous positions and pursuits; it woultl have been 
equally within the power of the State to have e.\tende»l the exclusion so 
a-s to de])ri\c the jiarties who arc unable t o take the oath, from any 
avocation whatever in the State. Take still another c:ise: suppo.se that, 
in the pro<.:rcss of events, persons now in the minority in the State .should 
obtain the a.scc iidtnc y. and .secure the control of the fiovernment, nothing! 
could picvent, il ili<- constitutional jirohibition could be evaded, the 
enactment of a provision r<(juirinji every per.son,as a coiulition of luddiu}; 
any position of honor or trust, or of pursuing any avocatiini in the State, 
to lake an oath that he had never ad\<icated or atlvised or sujiporled the 
imposition (»l the present ex])urj;alory oath. Inder this Ibrm of le-iis- 
lation (III- m<ist lla^^rant invasion of private rights, in periods of excite- 
ment, ni.iy be enacted, and indiv idiials, and even whole classes, ntay be 
deprived of political and i'i\il ri;;hts." >- 



51 

of the court on them in the case of the State of Mississippi 
V. President Johnson (4 WalL 475). A motion was 
made on behalf of the State of Mississippi for leave to 
file a bill in its name praying the court perpetually to 
enjoin and restrain Andrew Johnson, President of the 
United States, and E. 0. C. Ord, general commanding in 
the district of Mississippi and Arkansas, from executing 
or in any manner carrying out the Reconstruction Acts. 

The Attorney-General objected to the leave asked for 
vipon the ground that no bill which makes the President 
a defendant and seeks an injunction against liini to re- 
strain the performance of his duties should be allowed 
to be filed in the court, and this point was fully 
argued. It w^as assumed by the counsel for the State 
that the President in the execution of the Reconstruc- 
tion Acts was required to perform a mere ministerial 
duty, but the court said that in this assumption there 
was a confounding of the terms ministerial and executive ; 
that the duty imposed on the President was in no just 
sense ministerial, but was purely executive and political. 
"An attempt," said the court, "on the part of the judical 
department of the government to enforce the performance 
of such duties by the President might be justly charac- 
terized in the language of Chief Justice Marshall as ' an 
absurd and excessive extravagance.' " It was true that 
in the case before the court its interposition was not sought 
to enforce action by the executive under constitutional 
legislation, but to restrain such action under legislation 
alleged to be unconstitutional. But the court said it was 
unable to perceive that this circumstance took the case 
out of the general principles which forbid judicial inter- 
ference with the exercise of executive discretion. The 
motion for leave to file a bill was, therefore, don icd. 

In the subsequent case of The State of Geoi-gia v. Stanton 
(0 Wall. 50), a l)ill in equity — filed by the State to enjoin 
the Secretary of War and other officers, who represented 
the executive authority of the United States, from carry- 



52 

ing into execution the Reconstruction Acts of Congress, 
on the ground that sucli an execution would annul and 
totally abolish the existing State government of the State, 
and establish another and different one in its jdacc — in 
other words, would overthrow and destroy the corporate 
existence of the State, by depriving it of all the means 
and instrumentalities whereby its existence might and 
otherwise would be maintained — was held to call for a 
judgment upon a political question, and would not, there- 
fore, be entertained Vjy the court. 

But though the Reconstruction Acts could not be 
brought before the court for judicial decision, the Judge, 
in company with the great majority of the legal profes- 
sion of the country, viewed the acts as unconstitutional 
and as retarding instead of advancing the peace of the 
country. 

In the famous Legal-tender Cases he stood with ("liief 
Justice Chase against the constitutionality of the act of 
Congress making the promises of the government a legal 
tender for the payment of debts. He could not agree 
with some of his associates that Congress possessed the 
power to make the promise of a dollar the equivalent of 
a dollar itself Had that decision, which prevailed in the 
court by a inajoi'ity (jf one, been sustaiiu'(l, it was his 
ojtinion that the people would have been spared the 
financial uncertainty which followed the war, ami for 
a long |)eriod depre.s.sed the industries of the country. 
Shortly after the decision, upon the addition of two nt \v 
Justices to the bench, the question was reo[)ened. and the 
former decision reversed by a majority of one. This be 
thought a step backward, and a ileparturc iVoni the sound 
system established by tlu- Constitution. 

In the Slaii//litn'-lioH.'<e Cases of New ()rlran^ lu' went 
beyond llif ni;ijoi-ity of tin- t-ourt. and ga\r a wiilci- appli- 
cati(»n to the l"\»ur(('cnth Amendment of the Constitution, 
arguing that it was designed to prevent hostile and dis- 
criminating legislation against any elass of eiti/.en.s — 
whites as well as blacks. 



53 

The first section of the Fourteenth Amendment is as 
follows: "All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens 
of the United States and of the State wherein the}' reside. 
No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the 
United States; nor shall any State deprive any person of 
life, liberty, or property without due process of law, nor 
den}^ to any person within its jurisdiction the equal pro- 
tection of the laws." The court held, in the case men- 
tioned, that the clause, that "no State shall make or 
enforce anv law which shall abridge the privileges or 
immunities of citizens of the United States," had refer- 
ence to those privileges and immunities which belong to 
persons as citizens of the United States as distinguished 
from citizens of the State, and was of opinion that any 
other construction would deprive the States of the means 
of adopting measures which fell strictly within their 
police powers. The minority of the court, on the con- 
trar}^ held that the words "privileges and immunities" 
meant those fundamental rights and privileges which 
belong to the citizens of all free governments, and that 
the constitutional amendment prevented their abridg- 
ment by the States. The dissenting Justices found fault 
with the law of Louisiana, under consideration in that 
case, in that, in a district embracing eleven hundred and 
fifty -four square miles, and a population of over two 
hundred thousand inhabitants, it gave to a single corpo- 
ration, an exclusive right, for twenty-five years, to carry 
on one of the ordinary occupations of life, that of pre- 
paring animal food for market. The minority objected 
to the act in that it transcended the limits of the police 
power of the State and asserted a right to farm out the 
ordinary vocations of life. In its dissenting opinion, the 
minority, speaking by Justice Field, said: "The State 
may prescribe such regulations for every pursuit and 
calling of life as will promote the public health, secure 



54 

the good order, and advance the general prosperity of 
society, but when once prescribed, the pursuit or calling 
must be free to be followed by every citizen who is within 
the conditions designated, and will conform to the regu- 
lations. This is the fundamental idea upon which our 
institutions rest, and unless adhered to in the legislation 
of the country our government will be a republic only in 
name. The Fourteenth Amendment, in my judgment, 
makes it essential to tlie validity of the legislation of 
every State that this equality of right should be re- 
spected."* 

*In a subsequent case, Mr. Justice Field, speaking of this case, said: 
"The oppressive nature of the principle upon whioli the monopoly here 
was firanted will more clearly appear if it be applied to other vocations 
than that of keepinj? cattle and of preparinj; animal food for market — to 
the ordinary trades and callings of life — to the makin>; of bread, the 
raising of vegetables, the manufacture of shoes and hats and other arti- 
cles of daily use. The graiitin*: of an exclusive right to engage in such 
vocations would he repudiated in all communities as an invasion of com- 
mon right. The State undoubtedly may require many kinds of busi- 
ness to be carried on beyond the thickly-settled portions of a city, or 
even entirely without its limits, especially when attendant odors or 
noises affect the health or disturb the peace of the neighborhood ; but 
the exercise of this necessary power does not warrant granting to a par- 
ticular class or to a corporation a monopoly of the business thns removed. 
It may be that, for the health or safety of a city, the manufacture of 
beer or soap, or the smelting of ores, or the casting of machinery should 
be carried on without its limits, yet it would hardly be contended that 
the power thus to remove the business beyond certain limits would au- 
thorize the granting of a monopoly of it to any one or more persons. 
And if not a monopoly in business of this character, how can a monojmly 
for like reasons be granted in the business of preparing animal food for 
market, or of yarding and sheltering cattle intended for slaughter ?'' And 
again: "The common business and callings of life, the ordinary trades 
and pursuits, which are innocuous in thentsdves. and have l)een fol- 
lowed in all communities from lime innnemorial, nuist therefore lu' free 
in this country to all aliki" upim the same conditions. Tlie right to jmr- 
Kue them, without let or hindrance, except that which is applied to all 
])ersonH of the saini- age. sex. and condition, is a dislinguishing jirivjlege 
cif citizens of the United .Stales, and an «'s.sential element of that free- 
diiiii which lliey claim as their birthright." Hulchers' I'liion Co. r. Cres- 
ctiii lilv C.i , 111 r. S. T.'iC. 7.'.7. 



55 

In the case of protection of sealed matter in the mails, 
he held that letters and sealed packages subject to letter 
postage in the mail can be opened and examined only 
under warrant, issued upon oath or affirmation, particu- 
larly describing the thing to be seized, the same as is 
required when papers are subjected to search in one's own 
household; that the constitutional guaranty of the right 
of the people to be secure in their papers against unrea- 
sonable searches and seizures extends to their papers 
thus closed against inspection wherever they may be. 
But the law which thus sacredl}' guards private corre- 
spondence is abused and perverted when made a shelter 
and screen for vice and crime; and he points out in what 
wav, consistently with the constitutional guaranty, the 
senders through the mails of obscene books and prints 
may be reached and punished. 

Upon the question of the validity of the Thurman Act, 
relating to the Pacific railroads, he contended for the 
inviolability of contracts; that an engagement once made 
by a State or by an individual is sacred, even though it 
be difficult of fulfilment; that it is the mark of a just 
government, as of a just man, that it " sweareth to its 
own hurt and changeth not." * 

*In his dissenting opinion the Judge said: "Where contracts are 
impaired, or, when operating against the Government, are sought to be 
evaded and avoided by legishition, a blow is given to the security of all 
propertj. If the Government will not keep its faith, little better can 
be expected from the citizen. If contracts are not observed, no property 
will, in the end, be respected; and all history shows that rights of per- 
son are unsafe where property is insecure. Protection to one goes with 
protection to the other; and there can be neither prosperity nor progress 
where this foundation of all just government is unsettled. ' The mo- 
ment,' said the elder Adams, 'the idea is admitted into society that 
property is not as sacred as the laws of God, and that there is not a force 
of law and public justice to protect it, anarchy and tyranny commence.' 
I am aware of the opinion which prevails generally that the Pacific 
Railroad corporations have, by their accumulation of wealth and the 
numbers in their employ, become so powerful as to be disturbing and 
dangerous influences in the legislation of the country ; and that they 
should, therefore, be brought by stringent meiisures into subjection to 



56 

As stated liy the lc[;al writer from whom we have al- 
ready quoted: The princii)le.s whicli underlie all Judge 
Field's work in interpretingthe Constitution, and to which 
he has constantly adhered, whether acting with the court 
or dissenting from it, "are summed up in two ideas: 
First, the preservation from every interference or invasion 
by each other of all the powers and functions allotted to 
the National Government and the State governments; 
and, second, the perfect security and protection of private 
rights from all encroaciiments, either by the United States 
or by the imlividual States. These two ideas he has 
steadily kept in view, and has made the basis of his de- 
cisions. He has demonstrated that a constant and firm 
maintenanceof the powers justly belonging to the Federal 
government is not incompatible with an equally firm 
upholding of the powers entrusted to the States, with an 
undeviating adherence to the sacred doctrineof local self- 
government, and with zealous protection of private rights, 
because all, in fact, rest upon the same foundation." 

Judge Field has now [1S92] been nearly tiiirty years 
on the bench of the Supreme Court of tlie United States, 
and in length of service is the senior Judge. In the de- 
cision of the multitude of cases whit-h have come up from 
year to year, he has takt'ii iiis full share of lal)or and re- 
sponsibility, sometimes writing tiie opinion of the court, 
and .sometimes di.ssenting from its views. These opinions, 
among other things, as already stated, relate to test oaths, 
military commissions, confiscations, pardons and amnesty, 
legal- tender notes, legislative power of the insurgent 
States during the civil war, protection of sealed matters 
ill the mails iVoiii iiis[)('etion by ollieials, and. it may he 
added, also, to the | tower of the State to control compen- 



tlu* State. Tliis may lie true; I do not say tliat it is not ; hut, ilit is. it 
Inrnishes no instilicition lor the repudiation or eviusion ol tlie eontrael.s 
made with tliem Ity the (Jovernnunl. The hivv tiiat proteets the wealth 
ol' the mo>t piiwerrul proteets al>o ihe earnings ol' the most liumiile : and 
tlie law wliicli would eonliseate tlie propi r(y ol t lie oiir w uii id ill the 
cud lake the earnings of the other.'' 



57 

sation for the use of private property, the rohition between 
the General and State governments, the powers and liabil- 
ities of corporations, interstate commerce, restraints upon 
taxation, trust character of directors of corporations, and 
the use of running waters on public lands, and to a great 
variety of other subjects. It would require a volume to 
give even a condensed history of these cases. The most 
important of them in which opinions were delivered by 
him for the court, as well as those in which he dissented 
from its views, are mentioned in a note below.* 

J * Those in which he delivered the opinion of the court : Cases on the 
invalidity of test-oaths for past conduct, Cuniinin'js v. Missouri, 4 Wall. 
277, and Ex parte Garland, 4 Wall. 333; cases relating to interstate com- 
merce, and the power of the State concerninfi it, Welton v. Missouri, 91 
U. S. 275; County of Mol)ile v. Kimball, 102 U.S. 691; Sherlock v. Ailing, 
93 U. S. 99; Escanaba v. Chicago, 107 U.S. 678; Miller v. Mayor of New 
York, 109 U.S. 385; Cardwell r. American Bridge Co.. 113 U. S. 205 ; 
Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; and Hiise v. Glover, 

119 U. S. 543; cases on questions growing out of the civil war, such as 
the protection of officers and men of the United States Army in the 
enemy's cotintry again.st civil proceedings for damages, the attempt of 
the Confederate States to confiscate debts due the citizens of loyal States, 
and the extent of liability of the United States for property taken or 
destroyed, Williams f. Bruffy, 96 U. S. 176 ; Coleman i;. Tennes.see, 97 
U.S. 509; Dow v. Johnson, 100 U.S. 158; Pacific Railroads t). United 
States, 120 U. S. 227; and the Tarble Case, 13 Wall. 397; cases on con- 
stitutional questions particularly aflfected by the Fourteenth Amendment, 
Barbier v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, 113 U. S. 703; 
Missouri Pacific Railway Co. v. Humes, 115 U. S. 512; Hayes v. Missouri, 

120 U. S. 68; cases on State, city, and county bonded indebtedness, 
United States v. New Orleans, 98 U. S. 381 ; Hurtmau v. Greenhow, 102 
U. S. 672; Pilsbury v. Louisiana, 105 U. S. 278; Broughton..j;. Pensacola, 
93 U. S. 266; cases on patents of the United States upon confirmed Mex- 
ican grants and for public lands and mining claims, Beard v. Federy, 3 
Wall. 478; Smelting Co. v. Kemp, 104 U. S. 636 ; SteeU. Smelting Co., 106 
U. S. 447; cases on mining claims and water rights, .Jennison v. Kirk, 98 
U.S. 453; Atchison v. Peterson, 20 Wall. 507; Basey v. Gallagher, 20 
Wall, 670; cases on the power of a State to prescribe the conditions on 
■which foreign corporations may do business within its limits, i'aul v. 
Virginia, 8 Wall. 168, and Pembina Consolidated Silver Mining Co. v. I'enn- 
sylvania, 125 U.S. 181 ; on proceedings in State courts against non-resident 
debtors, Pennoyer i-. Neti', 95 U.S. 714; on the invalidity ol contracts 
for the nse of influence with public officials, Oscauyau v. Arms Co., 103 

8 



58 

From tlic time Judge Fii'ld went on the Federal bench 
up to the creation of Circuit Courts of Appeals, lie held 
C(jurt in his circuit, consisting of California, Oregon, and 
Nevada, every year except three, two of which he was 
absent from the country, and (hiring one of which he 
was not in good health, although since 1800 he was only 
required by law to sit in each district of the circuit once 

U.S. 261; on Federal jurisdiction over lands used Cor public purposes of the 
United States {loveninient witliin tlie States, Fort Leavenworth K. K. Co. r. 
Lowe, 114 U.S. 525, and Leaven wortli and Chicajjo and Kock Ishind K. K. 
Co. V. McGlinn, Ibid. 543; on the removal of a cloud upon title by a suit 
in ecjuity of a party in i)ossession, Holland r. Cliallen, 110 U. S. 15; on 
the responsiliility of railroad corporations to their eniployi's for injuries 
inllicted in conse(jU('uce of nejilijicnce of train conductors. Chicago and 
Milwaukee Kailroaii Co. v. Ko.ss. 112 U. S. 377; on protection of sealed nuit- 
ter in the mails, Ex parte Jackson, 96 U. S. 727 ; on the exemption of a pas- 
senjier in a public conveyance from liability for the negligence of the 
driver, Little r. Hackett, 116 U. S. 366 ; on tin- jjower to take private 
property for public use in the exercise of the right of eminent domain as 
an incident of sovereignty belonging to every independent government 
and existing in the Government of the United States. United States 
V. Jones, 109 U. S. 513; on construction of certain treaties. Whitney v. 
Morrow, 112 U. S. 693; Whitney v. Uobertson, 124 U. S. 191; on the 
Houmas Spanish grant and construction of certain statutes, Slidell v. 
Grandjean,lll U.S. 412; on the ownership by the State, on her admission 
to tlie Union, of tlie lands under tide-waters within lior limits not pre- 
viously granted, Weber v. Harbor Commissioners, l"^ NN'ail. 57: on the 
right of the States to swamp and overllowed lands within thiir limits. 
Wiiglit V. Koseberry, 121 U. S. 488; on the jiower of Congress to cancel 
a treaty, an<l the circumstances which may justify such action. The 
Chinese Lxclusion Case, 130 U.S. 581 ; on the power of Congress to invest 
consular tribunals, in other than Christian countries, with the j)ower to 
try and jjunish criminal olTences there committed by citizens of the United 
States, In re l^)^4s, 140 U.S. 453; in San Francisco v. Le Roy, 138 U. S. 
656, as to the right of the city, as the successor of the j)ueblo, to tide- 
hinds within its conlirmed iioundaries, (see also concurring o]iinion in 
Knight r. U. S. Land Association, 142 U. S. 189;) ami in liardon r. 
Northern i'acific Railroad C<i., 145 I'. S. 5:{5, on the segregation from 
tlie |iiiblic of lands wilhin the limits of a grant, by reason of a prior 
pre-emption claim, and the elVect of the cancellation of the pre-emption 
right before location of the grant; on contracts between two cili/.ens 
of the Unilt-d Slates, residing in loyal .Statis, nspecliiig cotton <iwned 
by one of llniii in the insurgent Statis, Hriggs r. I nitcd Slatex, 143 
U.S. 346; on tlu' jiowcr of a Statt- to e\;icl iVoni paitifs, lu-fore they 



59 

every two years. His circuit, as now constituted, embraces 
six States. Besides California, Oregon, and Nevada, the 
States of Washington, Idaho, and Montana have been 
added to it. In going and coming, and in his circuit, he 
has always travelled nine thousand miles a year, and 
sometimes a much greater distance, the expense of which, 
since 1871, he has been obliged to bear himself. When 

can practice medicine, a degree of skill and learning in that profession, 
upon wliicli the community employing their services may confidently 
rely, and to require them to obtain a certificate or license from a board 
or other authority competent to judge in that respect, Dent v. West Vir- 
ginia, 129 U. S. 114; on the liability for damages accruing by allowing 
cattle to run at large and spread disease, Kimniish v. Ball, 129 U. S. 217; 
on the validity of legislation imposing damages double the value of the 
stock killed by a railroad company on a road where the corporation had 
a riglit to erect a fence and failed to do so, Minneapolis & St. Louis Kail- 
way Co. V. Beckwith, 129 U.S. 26; on the liability of a party indicted 
in one State escaping or carried to another State to be indicted and tried 
in the latter State for an offence there committed without being sur- 
rendered to the former State, Mahon v. Justice, 127 U. S. 700; involving 
a question of boundary between two States, Indiana r. Kentucky, 136 
U. S. 479; upon the title of owners of land bordering on navigable 
rivers, above the ebb and flow of the tide, to the middle of the stream, 
Packer v. Bird, 137 U. S. 661 ; upon the taxation by a State of the 
francliise or business of a corporation incorporated under the law of 
the State or of another State and doing business within it, Home In- 
surance Company v. New York, 134 U.S. 594, and Maine r. Grand Trunk 
E. K. Co., 142 U. S. 217, and Horn Silver Mining Comi)any v. New York 
State,_143 U. S. 30r> ■ on the effect of a conveyance of property confiscated 
under the law of the United States, accompanied with a deed of warranty 
from the offending party after his release by pardon of the offences for 
which the confiscatiott was had, Jenkins v. Collard, 145 U. S. 547, on 
the validity of imposing a burden of a public service upon a corporation 
in consequence of its creation and of the exercise of privileges obtained 
at its request, Charlotte, Columbia and Augusta R. K. Co. v. Gibbes, 142 
U. S. 386; on the distinguishing feature of a suit in admiralty, in that 
the vessel or thing proceeded against is itself seized or im])leaded as a 
defendant, whereas, by the common law process, property is reached only 
through a personal defendant, and then only to the extent of his title, 
in the Moses Taylor, 4 Wall. 411; and on the inapplicability of the doc- 
trine of the common law as a test of the legal navigability of waters in 
this country; here the ebb and flow. of the tide not constituting, as in 
England, such test, in the Daniel Ball, 10 Wall. 557. 

Cases in which Judge Field has dissented from the views of the court: 



GO 

the circuit was originally created an allowance was made 
by law of one thousand dollars a year for his travelling 
expenses, but in 1871 this allowance was cut off. 

In his circuit he has been called upon to pass upon 
numerous questions of great moment. His most import- 
ant opinions there decided are in the cases stated in a note 
below.* 

The Slan^rliter-house cases, 16 Wall. S',i; (see also his concurring opinion 
ill Rutchers" Union Co. r. Crescent City Co., Ill U.S. 754;) the Legal- 
Tender case.s, 12 Wall. d'.lA, and 110 U. S. 451 ; the Confiscation cases, 11 
Wall. :>14 and H49 ; the Pinking Fund ca.ses, involving the validity of the 
Tiiui man Act, 99 U. S. 750; the Elevator ca.se, Munn v. Illinois, 94 U. S. 
1 :■>(!. iiuoh in;i the \ alidify of legislation fi.xing prices for the use of private 
property; the Virginia Judge ca.se, Ex parte Virginia. 100 U.S. 340; the 
Provost Marshal case, P.eckwith r. Bean, 98 U.S. 2H5 ; the Louisiana 
Deht cases. Louisiana r. Juniel. 107 U. S. 728; the Virginia Debt case, 
Anioni r. Greenhow, 107 U.S. 784; and in the Attorney's case. Ex parte 
Wall, 107 U. S. 290; the telegraph case, Pensacola Telegraph Co. j-. West- 
ern Union Telegraph Co., 96 U.S. 14; the Spring Valley water case, 
Spring Valley Water Works v. Schottler. 110 U. S. 356; in the Chinese 
Restriction case, Chew Heong i\ United States, 112 U. S. 536; in the case 
of the Bridge Co. d. United States, 105 U. S. 470, against the alisolute 
control hy the United States of hridges constructed by authority of a 
State on navigable waters within its limits; their control, as contended, 
limited to the protecticui and im])rovement of the free navigation of llH)se 
waters; in Powell r. Pennsylvania. 127 l'. .S. 678, against the a.s.serted 
jiower of the .State to prohiltit the right ol tlu- individual to manufacture 
a healthful article of food; in Mct.-Mlister v. United States, denying the 
p iwerof the President to remove from office a judge of a territory during 
his term prescribed by Congress, 1 141 U. S. 174;l in Hoyd r. The State 
of Nebraska and Tliaver, against the jurisdiction of the SiipK me Court 
to determine a disputed tpustion as to the right to the goveiiiorship of n 
Slate, (143 U. S. 1H2;I in O'Neil i: Vermont, against the Suprenu- Court, 
denying its jurisdiction in a ca.se inv(»lving a (|uestion of interstate com- 
merce, and whe.re the pnnisiiment imposed was cruel and unusual, il44 
U. S 3:!7;i and in Ikhi .-^ilver .Mining Co. r. Mike and Siair (injd and 
.•Silver M ining Co., [ Mi! U. .S. ;>!)4, i against the delinitions made of " known 
lodes or veins "of goUl and silver, y 

" ' In the I'ueblo case of the City of San Francisco r. United States. (4 
Sawyer, 553.) invohing its claim to four sijuare leagues of land, under 
tile laws of .Me.xieo, on the peninsula on whieli the city is situated: in 
.Montgomery' r. B«vauH, ll Id. 653,1 upon the power of alcaldes of ."san 
Francisco to make grants of laud within the city limits, and upon the 
prediiniption of life durinj^ the ab.sence of a party unheard from for .seven 



61 

Of the estimate which should be placed upon the judi- 
cial character and labors of Judge Field, we have the 
opinion of Professor Pomeroy, contained in an intro- 
ductory sketch to an account of his legislative and judi- 
cial work, published in 1881. No one was more compe- 
tent, both from his professional standing, eminent abili- 
ties, and thorough knowledge of the opinions and labors 
of Judge Field, to pass judgment upon his judicial 
character. After the Judge had been eighteen years 
on the bench of the Supreme Court of the United States, 
Professor Pomeroy wrote an extended review of his 
opinions and judicial character, from which the following 
is taken : 

"It would be a comparatively easy task for one who was per- 
sonally a stranger to Judge Field, and was only acquainted with 
him through his reported decisions, to form a correct estimate of 

years ; In re Ah Fong, (3 Id. 144,) upon the exclusion of foreifin emijirants 
by commissioners for previous had moral character or for inability to sup- 
port themselves under a law of California; in Patterson v. Tatiim, (3 Id. 
164,) on the grant by Congress to the State of 500,000 acres and the effect of 
selections from the land under the legislation of the State ; in the Eureka 
Mining case, (4 Id. 302,) relating to mining veius and lodes of gold and 
silver; in United States v. Flint and v. Throckmorton, (4 Id. 42,) involving 
a consideration of the validity of decrees of the special tribunals in Mexi- 
can land cases, and the grounds upon which such decrees can be im- 
peached ; in Hardy v. Harbin, (4 Id. 536,) showing that the holder of the 
legal title to land acquired by fraud may be converted into a trustee of 
the true owner and compelled to convey the title to him ; in the Tax 
Cases of the County of San Mateo r. Southern Pacific Railway Company, 
(8 Id. 238,) and the Santa Clara Railroad Tax Case, (9 Id. 165.) involv- 
ing a consideration of the effect of the Fourteenth Amendment in 
requiring equality and uniformity in the assessment of property of rail- 
roads as well as of individuals; in the ca.se of the Pacific Railway 
Commission, (12 Id. 559,) involving the question of the right of Con- 
gress to inquire into the private afiiiirs of the Pacific Railway Com- 
panies in matters not connected with railways ; in tlic case of Denny v. 
Dodsou, involving the construction of the Northern Pacific Railway Acts, 
(13 Id. 68 ; ) in the case of Sharon's Executors v. David S. Terry and 
Sarah Althea Terry, his wife, reviving a suit in equity, abated by the 
death of the complainant, for the purpose of executing a final decree 
which had been rendered in such suit, (13 Id. 387;) and in the Terry 
Contempt Case, (Id. 440.) .. 



62 

his judicial character. Its important elements, those which dis- 
tinguish him from the other judges, and which constitute the 
special grounds of his success and of his power, stand out in clear- 
cut lines upon all the creations of his official labors. He has 
stamped himself — his intellectual and moral features — deeply into 
all the work wliicli he has done. From my own personal ac- 
quaintance with him, but chiefly from a careful study of all his 
important judgments rendered both while a member of the .State 
Court, and after his transfer to the National Ji>diciary, I have 
arrived at the following conclusions, which I unhesitatingly sub- 
mit as the most striking and distinctive elements of his judicial 
character and work. They are undoubtedly the very (j lalities 
which, in our system of jurisprudence, steadily developing through 
the crea'.ive functions of the courts, mark the ideal judge — the 
qualities which have been held by, and which admit him to be 
ranked with, the very foremost class of jurists who hav(> set upon 

the Kiiglisli and American bench 

" In the first and lowest place, he possesses ati ample legal 
learning. It cannot be preteoded that he has that exact knowl- 
edge of technical common-law dogmas which distinguished such 
a judge as Lord Kenyon or Baron Parke, or of the intricate 
minutiie of real estate and conveyancing law which alone gave 
Lord Eldon his pre-eminence among English chancellors — a sort 
of knowledge which with a certain j)e(lantic school has passed 
for the highest legal learning, but which is worse than useless 
rubbish fi)r the American judge of to-day. Judge Fields learn- 
ing, as a dis;inctive feature of his intellect, is rather the capacity 
in an extraordinary degree to accjuire the new knowledge inade 
nece.«sary by the demands of his position — the capacity to investi- 
gate sources and .'jystems of jurisprudence hitherto unknown, to 
sift truth IVom error, to extract whatever there is of living prin- 
ciple, ami to appropriate aiul to assiuiilato tlu' materials this ob- 
tained wiih the State or .National law whic-h he is aduiinistering. 
He bntught to the bench a mind stored with the doctrines of the 
common law and oi' ecpiilv, great intellectual vigor, and a most 
remarkable eapaeity Ibr rapid and sustained mental labor. I'he 
exigencies ^^\' his position recpiired him to investigate the Spaiii<h- 
Me.xican ('ixles. which furnished the a ithoritative rules eoiicern- 
iiig ' pueblos,' with all the municipal and proprietary rights 
flowing therel'rom and concerning the Mexican governmental 



63 

grants to private owners, and also to create general principles 
and doctrines for which the common law and equity of England 
and the United ^States afforded very few if any analogies. It is 
enough to say that his learning, his intellectual power, and his 
thorough and accurate study of foreign systems were alwavs ade- 
quate to meet the requirements of the occasion 

"The second and much more important element which I shall 
notice, is his devotion, to principle — diat quality of intellect which 
leads him, on all judicial occasions, to seek foi-, apprehend, and 
appreciate principles, rather than to rest satisfied with mere rules, 
although sustained by precedent, and to apply firmly these prin- 
ciples where found in all their relations and consequences — to 
place his decisions upon the solid basis of fundauiental and uni- 
versal principles, rather than upon arbitrary dogmas. This quality 
gives a most marked unity, consistency, and universality to his 
decisions, not only to those connected with some single branch of 
the law, but to those belonging to any and all de])artnients. His 
adjudications generally will thus be found related to each other, 
harmonious, corresponding parts of one completed system. This 
method of adhering to principle as the sure and constant guide 
in ascertaining, interpreting, and applying the law is the im- 
mediate and efficient cause of that most remarkable consistency 
which runs through all his judicial utterances. I shall have 
occasion to speak more in detail of this special feature of con- 
sistency, when describing his judgments upon questions of consti- 
tutional law; and although it appears, perhaps in the most striking 
manner, in that class of cases, it is still 51 distinguishing mark of 
all his work. The power of discovering, apprehending, and ap- 
plying principles is the highest intellectual faculty of the ideal 
judge; it takes the place of, and is universally superior to, any 
amount of mere learning; it is the very essence of the best learn- 
ing which can be employed in the judicial station. . . . As 
has already been said, many of his judgments, pronounced while 
in the .State court, relate to matters of purely local interest, such 
as the peculiar land titles of California, the Mexican pueblos, the 
ownership of gold and silver in t<ita,m'nnug and water rights, etc.; 
and this class of cases undoubtedly required for their decision the 
greatest amount of original investigation, tracing of obscure 
analogies, and creative power, and expenditure of intellectual 
force which can hardly be appreciated by the profession in other 



64 

parts of the country who are uutamiliar with the intricate ques- 
tions involved. On liie otlier hand, many of his opinions deal 
with subjects of universal interest, as, for example, the powers and 
liabilities of municipal and of private corporations, the nature of 
mortgages, the validity of .Sunday laws, etc. These judgments have 
uniformly l)een regarded by the profession and courtsof other States, 
and l)v text-writers, as having the highest authority. . . . 

"I'he tiiird distinctive element requiring special notice is what 
may a|)propriately be called his creative power. By this designa- 
tion 1 iiuan liis aljility in developing, enlarging, and improving 
the law, bv additions of new material, whether this material be 
borrowed from foreign sources or created by means of the legisla- 
tive function belonging to all superior courts. The intellectual 
attributes referred to in this and in the preceding head are en- 
tirely distinct; they may co-exist in the same individual, or the 
first may be possessed in a high degree without the other. The 
first deals with the jurisprudence as it has already beej) estab- 
lished, investigating, examining, and expounding or applying its 
settled principles and doctrines; the other is creative and legisla- 
tive, employed in constructing new law, or reforming and expand- 
ing that which already exists Judge Field's peculiar 

talent as a legal reformer was shown in his purely legislative work 
done while a member of the State Assembly, and described in a 
previous division of this essay. He exhibited the same power 
and tendency upon the bench. They were shown in his constant 
rejection of ancient common-law dogmas, no matter how tiriidy 
settled upon authority, which had Ijccome outgrown, obsolete, and 
unlitted for the present condition of society, and in the sub>titu- 
tion of more just, consistent, and practical doctrines adapted to 
the need- ol'our own country ami people. I mcn'Iy mention, as 
sufficient examples of this class, his decisions upon the nature and 
eli'eet of mortgages, and those concerning the ownership of gold 
ami -ilvcr while in the soil, by which he boldly swept away the 
common-law rides on the subject, with all the absurd reasoning 
upon which they had been founded 

"The fourth element of his judicial character is his /c(i;-/tw«<'.i.'». 
As the power to apprehend and apply |)rinciples is the highest 
iiitellcrliKil (|ualitv, so is a true t'earle.ssne.>is (he higliest moral at- 
tribute of the ideal judge. No other American judge has so often 
been called upon to face popidar opposition in the deci?iou of 



65 

controversies involviiiij important legal questions, in wliicli large 
masses of the population were interested, and on one side of which 
all their passions, prejudices, and selfish motives were fully 
aroused, and often were raging in the fiercest manner; and no 
other judge has more frequently and faithfully discharged his 
sacred duty of deciding according to his own enlightened convic- 
tions of law and justice, in complete oblivion of all external forces, 
and in absolute fearlessness of the consequences. He has neither 
courted personal popularity nor shrunk from unpopularity by 
means of his decisions. He could well apply to himself the mem- 
orable and noble language which Lord Mansfield used from the 
bench when made the object of a violent clamor on account of 
his decisions: 'I will do my duty unawed. What am I to fear? 
The lies of calumny carry no terror to me. I trust that my 
temper of mind, and the color and conduct of my life, have given 
me a suit of armor against these arrows. ... I wish popu- 
larity, but it is that popularity which follows, not that which is 
run after; it is that popularity which, sooner or later, never fails 
to do justice to the pursuit of noble ends by noble means.' 

" No friend of Judge Field can estimate his intellectual and 
moral fearlessness too highly ; no enemy can deny, or ever has 
denied, that he possessed it. He has repeatedly encountered, and 
been compelled to endure, the bitter hostility of extreme partisans 
belonging to the most opposite schools of opinion ; of extreme 
Republicans and extreme Democrats; of those who maintain the 
dogma of State sovereignty, and of those who assert the absolute 
legislative power of the national government; of ignorant and 
prejudiced masses, and of scheuiing speculators who would disre- 
gard all law and right in order to accomplish their purposes. All 
these outbursts of opposition have, however, died away ; the justice 
and wisdom, as well as the law, of his decisions are vindicated. 
That true popularity has succeeded, among all intelligent persons, 
which in the words of Lord Mansfield, 'never fails to do justice 
to the pursuit of noble ends by noble means.' .... Any 
correct account of the decisions made in the State Supreme Court 
concerning the pueblo of San Francisco and the titles derived 
from the municipality ; concerning the occupation of public lands ; 
concerning the State ownership of gold and silver, and the claims 
of miners to enter upon all lands, private as well as public, in 
search for the precious metals ; concerning the rights of Mexican 
9 



no 

grantees and tlie intruders upon their lands, and concerning the 
validity of certain aci.s done by the municipal government of San 
Franci^^co, will exhibit in the clearest manner the quality of rec- 
titude and fearlessness which is such a distinctive element of his 
character. In many of the decisions rendered in the United 
States Supreme Court, indirectly growing out of the Civil War, 
and directly out of Congressional legislation enacted in consequence 
of the war, including those dealing with the validity of test-oaths, 
the extent and limitations of martial law, the trials of civilians 
by military tribunals, the suspension of the writ of habeas corjjus, 
and similar questions aHecting tlie very foundations of our political 
institutions and of our civil liberties — the same quality was ex- 
hibited from a higher station and in the presence of the whole 
nation." i^ 

In the summer of 1873 Judge Field \va.s ap{)ointeil by 
the Governor of California, in connection with two otlier 
persons, to examine the Codes of the State, and preitare 
such amendments as seemed necessary for the considera- 
tion of tlu' Legislature. Tlie Codes had been reported l)y 
a commission in the previous year, which had adoj^ted 
them principally from the reports of the New York com- 
mission. There was some conflict in {\\v juovisions of 
the different Codes wliidi {)revented their harmonious 
working. It was thoughL by the bar and profession in 
the State that if Judge Field wuiild undertake it, the con- 
flicting provisions could be, by proper amendment, re- 
moved. -Vt their suggestion, the Governor a}>pointed him 
and Mr..bihii W. Dwindle and Mr..hicks()n Temjdecom- 
missioners. They entered upun tin- labur with great 
cheerf"ulness, and prosi'ciiti'd it during the summer of 
iSTo, ami made a rejiort to tlie Legislature, with tlu' drafts 
of several bills. Niarly all tlif aiiundmeuts proposed 
wert! adopted by the Legislature, ami siiieetln'u the ("odes 
have W(»rked well in the Stale. 

Ill tlie beginning of the year 1.^77 tlu' Suin'eme Court 
of tiie United States, then silting in Washington, arrested 
its session for a case which had no precedent in the his- 
tory of the ( iovirument. Tlieii' was a disputed I'resi- 



67 

dential election. The country was greatly excited, Con- 
gress was divided, the Senate being Republican and the 
House Democratic. To meet a crisis for which the Con- 
stitution made no provision, a law was passed creating 
an Electoral Commission, composed of five Justices of the 
Supreme Court, five Senators, and five Representatives. 
In the act of Congress Judge Field was designated one of 
the Commissioners, and sat in the deliberations upon the 
question whether Mr. Tilden or Mr. Hayes was entitled 
to the electoral votes of cert^ain States. On their decision 
it was to depend who was to be President for the next four 
years. The history of that Commission is well known. 
The Commissioners refused to go behind the certificates 
forwarded from the different States, which declared certain 
persons to liave been appointed electors, and considered 
that their duty was simply to announce the result of those 
certificates; when, by the very terms of the act creating 
the Commission, they were required to determine — not 
merely who had certificates of election — but who had 
been duly chosen. The position taken by some of the 
Commissioners appeared to him to be monstrous, and he 
expressed his opinion without qualification.* 

* To the alleged conclusiveness of the certificate the Judge replied : 
"A certificate is only prima facie evidence of the fact certified. Indeed, 
I venture to assert, without fear of successful contradiction, that, in the 
absence of positive law declaring its effect to be otherwise, a certifi- 
cate of any officer to a fact is never held conclusive on any question be- 
tween third parties; it is always open to rebuttal. There are, indeed, 
cases where a party who has been induced to act upon the certificate of 
a fact may insist that the truth of the certificate shall not be denied to 
his injury, hut those cases proceed upon the doctrine of estoppel, which 
has no application here. The fact here to be ascertained is, who have 
been duly appointed electors of the State of Florida, not who have tlie 
certificates of appointmesnt. It is the election, and not the certificate, 
which gives the right to the office. The certificate, being only evidence, 
can be overcome by any evidence which is in its nature superior. And 
this is equally true of the certificate i.ssued under the law of the State 
as of the certificate issued under the act of Congress. And it is equally 
true of the certificate of the Board of Canvassers. Tliose oflicers exer- 
cised mere ministerial functions; they i)o,ssessed no judicial power; their 



68 

* In the year 1880 the name of Judge Field was promi- 
nently before the country as a candidate for the Presi- 
dency. He had always been a Democrat, and, except 
during the Civil War, uniformly acted with the Demo- 
cratic i)arty. When the war broke out, he ranged him- 
self on the side of tlie Government, and gave earnest sup- 
port to the administration of Mr. Lincoln. Some of hi.s 
friends think he contributed as much as any one to keep 
California in the Union; certainly he was one of a few 

determination had none of the characteristics or conclusiveness of a 
judicial proceedinji; it had been so decided by the Supreme Court of the 
State. And yet, in the opinion of the distinjruished Commissioner from 
Indiana. [Senator .Morton,] and some other Commi.ssioners from the 
Senate and Hou.se appear to concur with him, the determination of those 
canvassers, as expressed Ity their certificate, is more sacred and binding 
tlian the judjimcnt of tlie highest court of tlie kind, incapable of success- 
ful attack on any ground whatever. 

" I put, yesterday, to these gentlemen this question : Supposing the can- 
vassers had made a mistake in addition in footing up the returns, a mis- 
take that changed the result of the election, and acting upon the supposed 
correctness of the addition they had issued a certificate to persons as 
electors who were not in fact chosen, and such jiersnns had met and voted 
for President and Vice-President, and transmitted the certificate of tlu'ir 
votes to \V;i.shington, and afterwards, before the vote was counted by 
the two Houses of Congress, the mistake was discovered — was there no 
remedy ? The gentlemen answered that there was none ; that whatever 
mistakes of the kind may have been committed must be corrected be- 
fore tlie vote was ca.st by tlie electors, or they could not be corrected at 
all. If this be sound doctrine, then it follows that by a clerical mistake 
ill arithmetical computation a jier.son may be placed in the Ciiief .Magi- 
stracy of the nation against tlie will of the people, and the two Houses 
of Congress are jiowerless to prevent the wrong. 

" Hut the gentlemen do not stop here. I put the further (juestion to 
them: Supposing the canvas.sers were brilted to alter the returns, and 
thus change the result, or they had entered into a conspiracy to commit 
a fraud of this kind, and in pursuance of the bribery or conspiracy they 
dill in fact tamper with and alter the returns, and declare as elected 
persons nrti chosen by the voters, and sucii |)ersons had voted and trans- 
mit(cd their vote to tiie President of the Senate, but before the vote 
was counted the fraud was delected and exposed — was there no remedy? 
The gentlemen answered, as before, that there was none; that wliatever 
fraud may have existed must be proceeded against, and its success de- 
feated befor«' llie electors votc<i : that wliatever related to their action 



69 

persons who accomplished this. But when the war was 
ended, he was for peace — actual peace — not one in name 
only. All the oppressive measures taken by the Repub- 
lican party towards the South, known as Reconstruction 
Acts, under which carpet-bag rule was inaugurated and 
sustained, with all its attendant and subsequent corrup- 
tion and plunder, were to him the object of detestation. 
He expressed opposition to these measures, and his course 
on the bench against test oaths, confiscation acts, and 
the like harsh proceedings attracted the attention of the 
country, and before the meeting of the convention at Cin- 
cinnati to nominate a candidate for Presidency no name 

was then a closed book. If this be sound doctrine, it is the only in- 
stance in the world where fraud becomes enshrined and sanctified beliind 
a certificate of its authors. It is elementary knowledge that fraud viti- 
ates all proceedings, even the most solemn ; that no form of words, no 
amount of ceremony, and no solemnity of procedure can shield it from 
exposure and protect its structure from assault and destruction. The 
doctrine asserted here would not be applied to uphold the pettiest busi- 
ness transaction, and I can never believe that the Commission will give 
to it any greater weight in a transaction affecting the Chief Magistracy 
of the nation. 

"But the gentlemen do not stop here. I put the further question to 
them : Supposing the canvassers were coerced by physical force, by pistols 
presented to their heads, to certify to the election of persons not chosen 
by the people, and the persons thus declared elected cast the vote of the 
State — was there no remedy? and the answer was the same as that given 
before. For anj' wrong, mistake, fraud, or coercion in the action of the 
canvassers, say the.se gentlemen, the remedy must be applied before the 
electors have voted ; the work of the electors is done when they have 
acted, and there is no power under existing law by which the wrong can 
be subsequently righted. 

" The canvass of the votes in Florida was not completed until the morn- 
ing of the day of the meeting of the electoral college, and within a few 
hours afterwards its vote was cast. To have corrected any mistake or 
fraud during these hours, by any proceeding known to the law, would 
have been impossible. The position of these gentlemen is, therefore, 
that there is no remedy, however great the mistake or crime committed. 
If this be sound doctrine, if the representatives in Congress of forty-two 
millions of people possess no power to protect the country from the in- 
stallation of a Chief Magistrate through mistake, fraud, or force, we are 
the only self-governing people of the world held in hopeless bondage at 
the mercy of political jugglers and tricksters." 



"0 

was more conspicuous tlian his. On the first ballot he re- 
ceived sixty-five votes. He had assurances from various 
portions of the country, and from men wlio were mem- 
bers of tlie convention, that he would receive, at a very 
early stage of the proceedings, over two hundred and fifty 
votes. It is quite probable that such would have been the 
case, had he been earnestly supported by his own State, i^ 
This might have been expected by one who had received 
such proofs of his popularit}', not only in the State, as 
were given in his immense majority of the popular vote 
when a candidate for the Supreme bench in California, 
but generally on the Pacific Coast, as was shown in 
tlie unanimous recommendation of the Pacific delegation 
for his appointment to the bench of the Supreme Court 
of the United States. But when the convention in Cali- 
fornia assembled to choo.se delegates to the National Con- 
vention it was found that a very strong element of oppo- 
sition had arisen to the candidacy of Judge Field, from 
his suppo.sed opinion in favor of Chinese immigration, a 
feeling which had been, to a very great extent, created by 
his decision in the famous "Queue case," wliieli arose in 
thiswise: The Pegishiture of the State liad passed, in 
April, 1870, an act concerning lodging houses and sleep- 
ing apartments witliin tlie limits of incorporated cities, 
declaring, among other things, that any per.son found 
sleeping or lodging in a room oran ai)artment containing 
less than five Imndied cubic feetof space in the elear, for 
each j)erson occupying it, sliould be deemed guilty of a 
mi.sdemeanor, and, upon conviction thereof, should be 
punislied by a fine of not less tha!i ten nor more than 
fifty dollars, or imprisonment in the county jail, or by 
both such fine and imprisonment. 

The plaintifl" in tlif "(^ueue case" was convidcd anil 
sentenced under this act to |iay a tine of ten dollars, or in 
default of sueli payment 'to be imitrisoned five<lays in the 
county jail. I'^ailing to |»ay the fine, he was im|»i-isoned. 
Till' defendant, as sherill' of the citN' and eount\'of San 



71 

Francisco, had charge of the jail, and during the im- 
prisonment of the plaintiff cut off his queue. This he 
did under the assumed authority of an ordinance passed 
by the city of San Francisco declaring that every male 
person imprisoned in the county jail, under the judg- 
ment of any court having jurisdiction in criminal 
cases in the city and county, should, immediately upon 
his arrival at the jail, have the hair of his Iiead " cut or 
clipped to an uniform length of one inch from the scalp 
thereof," and made it the duty of the sheriff to have this 
provision enforced. The plaintiff thereupon sued the 
sheriff. In his complaint he alleged tluit it was the cus- 
tom of Chinamen to shave the hair from the front of the 
head and to wear the remainder of it braided into a queue ; 
that the deprivation of the queue Avas regarded by them 
as a mark of disgrace, and was attended, according to 
their religious faith, with misfortune and suffering after 
death ; that the defendant knew of this custom and re- 
ligious faith of the Chinese, and he knew that the plain- 
tiff venerated the custom and held the faith ; yet, in dis- 
regard of his rights, inflicted the injury complained of, 
and that the plaintiff in consequence thereof suffered 
great mental anguish, had been disgraced in the eyes of 
his friends and relatives, ostracized from association with 
his friends and countrymen, and had been damaged to 
the amount of ten thousand dollars, and he brought suit 
for the same. The defendant set up as a justification of 
his action the ordinance of the city and county of San 
Francisco, and the plaintiff demurred. The ordinance 
was presented to the court in two aspects : First, as a 
punishment, and, second, as a sanitary measure. As a 
punishment. Judge Field held that the supervisors could 
not add to that which the State had prescribed for viola- 
tion of the " cubic air law," which was fine or imprison- 
ment. The supervisors thought that if they could add 
to it, the cutting off of the queue, they would inspire the 
Chinese with such terror that it would induce them to 



l)ay tlie fines imposed rather tlian to sulfer imprisonment, 
Avhicli would discharge the fine at the rate of two dollars 
per day. Probably, as said by the judge in his opinion, 
"the bastinado, or the knout, or the thumbscrew, or the 
rack would accomplish the same end: and no doubt the 
Chinaman would prefer either of these means of torture 
to that which entails upon him disgraceamonghiscountry- 
men, and carries with it constant dread of misfortune and 
suffering after death." 

Judge Field held that the supervisors were not invested 
by the Legislature with any such power. As a sanitary 
measure, the Judge held that under the law then existing 
it was not for the board of supervisors to prescribe what 
regulations should be adopted for the health of prisoners 
sent to jail, but for the Board of healtli. whieh alone pos- 
sessed authority to prescribe the necessary sanitary meas- 
ures. 

The Judge went further, and considered the measure as 
one directed especially against the Chinese. The records 
of the supervisors, the communications of the mayor, 
and the debates of the members showed that the measure 
was intended solely for the Chinese, and not for all per- 
sons. The ordinance directing it was called the Queue 
Ordinance. It was not enforced against others. It was 
directed and enforced solely against the ('hincsf. It was 
held that contem|)Orary history was admissible to show 
the object of legislation : that only in that way were gen- 
eral terms, used in the legislation of the South wlun 
slavt-ry existed, limited. With statutes declaring the 
ecpiality of all men, slavery cuuld not otherwise have ex- 
isted. 

The (^leue ordinance, considered in the light of the 
liistory aitending its ))assag(\ was treated as s])ecial legis- 
lation oil the jiari of the supi-rvisors directed against a 
class, anil as imposing u|(on the ( "hiiuse a degi-ading and 
cruel punishment, and as such .Judge l''iel<l heiil that it 
was forbidden bv that clause of the Fourteenlii Ana iid- 



n 

ment to the Constitution which declares that no State 
"shall deny to any person within its jurisdiction the 
equal protection of the laws." He was of opinion that 
this inhibition upon the State applies to all the instru- 
mentalities and agencies employed in the administration 
of its government; to its executive, legislative, and judi- 
cial departments; and to the subordinate legislative 
bodies of its counties and cities. All this seems plainly 
and obviously just; and yet such was the feeling against 
the Chinese, that the decision created great bitterness 
towards the Judge, and lost him half the vote of Cali- 
fornia in the National Convention. It prevented an 
united presentation of his name before the convention. 
But little did that disturb him. He followed his own 
sense of right, and left consequences to take care of them- 
selves. Could he have foreseen the result of his decision 
in its effect upon his political fortunes, he would not 
have decided otherwise, nor delayed the decision a single 
hour. 

Judge Field had never favored the indiscriminate im- 
migration of Chinese. He had seen the difficulties of 
races so different from each other as the Caucasian and 
the Mongolian living in peace and working in harmony, 
side by side, but he knew that the treaty between the 
United States and Chinese governments pledged the honor 
of our country that the subjects of that empire should 
have all the privileges and immunities of sul)jects of the 
most favored nation, and he opposed all legislation of 
the State which sought to deprive tlie Chinese laborers of 
the protection which the treat}'- afforded. He said that 
the power to determine what foreigners should be permit- 
ted to come into the country, and to remain here, was not 
in the State but in the General Government, and that the 
State could not interfere with the General Government's 
control in the matter. That if Kentucky, for example, 
wished to have Chinese come into it, the State of Cali- 
fornia could not forbid it; that the only power which 
10 



74 

could assent or dissent from that measure was the General 
Government. He therefore set aside, or prohibited, the 
enforcement of such .State laws or city ordinances as 
interfered witli the full enjoyment of the privileges and 
immunities which the treaty with China stipulated. The 
fact tliat he thus decided created the impression that he 
himself was in favor of the immigration of Chinese 
laborers; at any rate, politicians thus charged him, and 
succeeded in creating .such a general impression. But, on 
the contrary, he was not in favor of indiscriminate immi- 
gration of Chinese. He thought that Chinese laborers 
should be excluded, and the admi.<;sion of others restricted 
in many particulars. In fact, his sentiments on that 
subject were in accordance with the general opinion 
which now ])revails. 

This political campaign was a novel experience. His 
candidacy was not a matter of his own seeking; it was 
urged upon him by friends who thought that if elected 
he might do something to bring the two sections of the 
country into more amicable relations than had for a long 
time existed. 

As the year 18S4 approached, the name of Judge Field 
was again frequently mentioned as a candidate for the 
Presidency. lUit many causes contributed to render such 
a candi<lacy unadvLsable, and no one perceived this clearer 
than himself. l*oi)ular opinion is ver}' apt to attrii)Ute 
to a judicial officer the ap[)roval of mea.sures which he 
only decides to be constitutional, that is. within the legis- 
lative power under the Constitution. He is therefore 
often condemned by persons from a mere consideration of 
the wisdom and policy, or want of wisdom and tin- im- 
policy of such measures. The Judge's course in main- 
taining the rights and jiriviK-ges of the Chinese in the 
country, until r tin.' treaty with the Chinese empire, was 
almost universally attributed to his favoring the immi- 
gration into tin- country of ("hinese laborers, and yet 
nothing could Ite faiibei- iVoui the truth. 



75 

So, also, a disposition to favor the great landholders, 
under Mexican grants, against settlers was ascribed to 
him because he regarded the stipulations of the treaty 
with Mexico for the protection of the property of such 
holders as obligatory upon the court. He, of course, could 
not consider the policy or wisdom of making such large 
grants by the Mexican government. The only question 
with him was as to their validity and extent. These 
matters being ascertained, his legal duty was |)lain, though 
great hardships sometimes followed, and necessarily, from 
his decisions. Of the immigrants who came to California 
upon the discovery of gold, a large number sought farm- 
ing lands upon which to settle, and they looked upon the 
large grants of the Mexican government — many of them 
embracing several square leagues of land — as a wrong, 
which they could not appreciate and to which they could 
not be reconciled. In many cases they denounced the 
validity of the grants, and, when in an}^ case the}' ad- 
mitted one to be valid, if its boundaries embraced a 
greater quantity than that specially granted, they would 
often undertake to locate the surplus and then to a])pro- 
priate it, not seeing that if one immigrant could de- 
termine that what he took was a portion of such surplus, 
another immigrant might, with equal right, determine 
that another portion was a part of such sur[)lus and take 
possession of it, and that thus by several settlers, each 
selecting what he deemed to be the surplus, the grantee 
might be deprived of his entire property.'^ It was the duty 
of the officers of the Mexican government to survey and 
measure off the actual quantity granted and deliver it to 
the grantee, leaving the surplus open to the public, and 
that duty, when not exercised by the former government, 



*"And thus," as said by the Supreme Court, "the contirmee.s would 
soon he stripped of the land which was intended by the government as 
a donation to its grantees, whose interests they have ac'<|uired, for the 
benefit of parties who were never in its contemplation." (Van Keynegan 
t). Bolbia, 95 U.S. 36.) 



76 

devolved upon the new government, yet it was neglected 
in many cases for years, leaving the title unsettled and 
leading to harassing litigation. The Judge, in protect- 
ing the rights of grantees, naturally drew upon him the 
hostility of all who sought to settle upon the lands of 
others, and was often denounced in unmeasured terms as 
controlled by monopolists and land grabbers. 

There was also another great cause of discontent with 
him at this time, and that was his application of the 
Fourteenth Amendment, declaring that "no State shall 
deny to any i)erson the e([ual protection of the hiws," to 
the taxation of railway pro{)erty. The constitution of 
California required the deduction of mortgages in the 
assessment of property of individuals for taxation, the 
mortgages to be assessed and taxed against the mortgagees, 
and the value of the property after such deduction to be 
assessed and taxed against the ownerof the fee. But this 
mode of assessment and valuation of property was not 
made applicable to property of railroads and public cor- 
porations. Judge Field disregarded this distinction, and 
applied the rule of uniformity to the jn'operty of railroad 
corporations as well as that of individuals.* This drew 

*In illustration of tlip iiie(|Viality i>ro(Uice(l. the court, by Jiidm' Tiild, 
said: " Wlieiu'vcr an individual holds projjerty enciiinliercd with a niort- 
gaf;e he is assessed at its value, after dediictin-i from it the amount of the 
niort}:aj;e. If a railroad company holds proi)erty snliject to a mori<ra<;e, 
it is as.sessed at its fall value, without any deduction for the mort-iafre : 
that is, as thonyh the properly were unencunihcred. The ineijiiality 
and di.soriniinatinf? character of the proci durr will he apparent hy an 
illustration fjiven hy t-oiinsel. Suppose a private person owns a farm 
which is valued at .'rli'O.ooO, and isencunihered with a mortjiaf^c amount- 
iwii to$-<(»,00(); he is, in that case, assessed at $;•,»( l,( U )() ; if the rate of taxa- 
tion he two per cent, he would pay >Jt(M) taxes. If a railroad corpora- 
tion owns an adjoinin<; tract worth $10(t, (!()(», which is also cncufiihered 
hy a mort^ap' for 5;H(I,(»0(), it would he assessed for iflOd.dOd. and he re- 
quired to pay $'.2,()tl() taxes, or live timi-s as imuli as ilir private person. 
There is hero a discrimination too palpahlc and ^ross to he ((uestioned, 
and such is the natuie of the discrimination made a;::ainst tiie Southern 
Pacific liailroad Company in the taxation ol' its (iroperty. Nothinj; can 
he dearer than that the rule of cijuality and uniformity is thus entirely 
disregarded. 



upon him a great deal of abuse, particularly from the 
Democratic party. Their papers were filled with denun- 
ciations of him, which were especially fierce and gross 

" The Fourteenth Amendment of the Constitution, in declaring that 

no State shall deny to any person within its jurisdiction the equal pro- 
tection of the laws, imposes a limitation upon the exercise of all the 
powers of the State, which can touch the individual or his property, in- 
cluding among them that of taxation. Whatever the State may do, it 
cannot deprive any one within its jurisdiction of the equal protection of 
the laws, and by equal protection of the laws is meant equal security 
under them to every one on similar terms, in his life, his liberty, his 
property, and in the pursuit of happiness. It not only implies the right 
of each to resort, on the same terms with otiiers. to the courts of the 
country for the security of his person and property, the prevention and 
redress of wrongs and the enforcement of contracts, but also his exemp- 
tion from any greater burdens or charges than such as are equally im- 
posed upon all others under like circumstances. 

" Unequal exactions in every form, or under any pretense, are abso- 
lutely forbidden; and, of course, unequal taxation, for it is in that form 
that oppressive burdens are usually laid. It is not possible to conceive 
of equal protection under any system of laws, where arbitrary and un- 
equal taxation is permissible; where different persons may be taxed on 
their property of the same kind, similarly situated, at different rates; 
where, for instance, one may be taxed at one per cent, on the value of 
his property, another at two or five per cent., or where one may be thus 
taxed according to his color, because he is white, or black, or brown, or 
yellow, or according to any other rule than that of a fixed rate propor- 
tionate to the value of his property, 

" Though the occasion of the amendment was the supposed denial of 
rights in some States to newly-made citizens of the African race, and the 
supposed hostility to Union men, the generality of the language used 
extends the protection of its provisions to persons of every race and con- 
dition against discriminating and hostile State action of any kind. Its 
eflect, in preserving free institutions and preventing harsh and oppresive 
State legislation, can hardly be overstated. When burdens are placed upon 
particular classes or individuals, whilst the majority of the people are 
exempted, little heed may be paid to the complaints of those affected. 
Oppres.sion thus becomes possible and lasting. But a burdensome law, 
operating equally upon all, will .soon create a movement for its repeal. 
With the amendment enforced, a bad or an oppressive State law will not 
long be left on any statute book.'" 

As to private corporations being included under the designation of 
persons in the Foarteeuth Amendment, the court, by Judge Field, said: 

"Private corporation.s, and under this head, with the exception of sole 
corporations, with which we are not now dealing, all corporations other 



78 

when they came, as many did, from leaders of the assault, 
some of whom had lost, by decisions rendered, large contin- 
gent fees. The Judge pursued the even tenor of his 

than those which are public are included — private corporations consist of 
an association of individuals united for some lawful purpose, and per- 
mitted to use a common name in their business, and have succession of 
membership without dissolution. As said by Chief Justice Marshall : 
'The great object of an incorporation is to bestow the character and 
properties of individuality on a collective and changing body of men.' 
(Providence Bank r. Billing.s, 4 Pet. 514, r)r)2.) In this State they are 
formed under general laws. By complying with certain prescribed forms 
any five persons may thus associate them.selves. In that sense corpora- 
tions are creatures of the State; they could not exist independently of 
the law, and the law may, of course, prescribe any conditions not pro- 
hibited l>y the Constitution of the United States, upon which they may 
be formed and continued. But the members do not, because of such 
association, lose their rights to protection, and ecjuality of protection. 
Tiiey continue, notwithstanding, to pos,sess the .same right to life and 
liberty as before, and also to their pro])erty, except as they may have 
stipulated otherwise 

" Whatever affects the property of the corporation, that is, of all the 
members united by the common name, necessarily atVects their interests. 
If all the members of the corporation die or withdraw from the associa- 
tion, the corporation is dead; it lives, and can live only, through its 
members. When they disappear the corporation disajipears. Whatever 
conliscates or imposes burdens on its property, confiscates or imposes 
burdens on their i)roperty ; otherwise nobody would be injured by the 
proceeding. Whatever advances the prosperity or wealth of the corpo- 
ration, advances proportionately the prosperity and business of the cor- 
porators; otherwise no one would be benefited. It is impo.ssible to con- 
ceive of a corporation siitlVring an injury or reai)ing a benefit except 
through its members. The legal entity, tiie metaphysical being tliat is 
csilleil a corporation, cannot feel either. So, therefore, whenever a ]>ro- 
vision of the Constitution or of a law guarantees to persons protection 
in their property or affords to them the means for its protection, or pro- 
hibits injurious legislation affecting it, the benefits of the provision or 
law are extended to corporations, not to the name under which differ- 
ent pcr.sons are united, but to the individuals composing the union. The 
courts will always look through the name to see and protect those whom 
the name represents." 

Since the above decision the Supreme Court has exi>r»'.s.sly lielii that a 
private coriioration is included under the designation of jier.son in the 
Fourteenth Amendment. (.S;inla Clara County r. .Southern I'aiific Ivail- 
road ('omjiauy, IH U. S. .\W>: riinl)iiia Mining Co r I'l-nnsy Ivania. I'L") 

U.S. 181, lay.) 



79 

way, amidst the torrent of abuse, but he recognized that 
it was not the time for him to look for political sup- 
port. He therefore positivel}' declined to be a candidate 
for the Presidency. He wrote a letter to Mr. Johnson, at 
the time editor of the Alta- California, io that effect, which 
was published in that paper. It is given in a note be- 
low.* 

He supposed, with its publication, his name would be 
left out of consideration, but it was not so destined. Some 
weeks after that letter was published a delegation of citi- 
zens from Missouri, headed by Mr. Mumford, the editor 
and proprietor of the Kansas City Times, called upon him 
at his residence in Washington, and stated that they 
wished to use his name as a candidate before the National 
Convention. The following is the account given by Mr. 
Mumford of the interview: 

" I came to Washiugton, aud, accompanied by other gentle- 
men, called on Judge Field to make known the object of our mis- 
sion. In reply to the express wish to use his name as a candidate 

* Washington, D. C, March 20, 1884. 
My Deak Mr. Johnson : 

Your letter of the 2d instcant was received a few days since. For the 
kind words it contained, and the interest it manifested to advance my 
supposed political aspirations, I give yon many thanks. But in truth I 
have not the aspirations you attribute to me. It is only out of deference 
to the wishes of friends that I have not long since put in print a decla- 
ration that my name cannot be used with ray consent in any political 
contest. I have looked over the whole matter, and months ago, as I told 
you last summer, I came to the conclusion that it will serve no useful 
purpose to l)riug me out as a candidate for the Presidential nomination. 
I am not insensible to the honor of having a favorable delegation from 
California. I should feel proud of the support of the State, but there is 
no use in disguising the fact that owing to prejudices in certain quarters 
it will be difficult to obtain it. I shall certainly not deny my record to 
secure any one's support. 

My judicial opinions on subjects of interest in California — the position 
of the Chinese in the State, the taxation of property of railways, and 
the Mexican land grants — have, lam aware, given otfensetoa large num- 
ber of the people who would have had me disregard the law, the treaties 
with China aud Mexico, aud the Constitution, to carry out tlieir views 
and schemes. I could not thus do violence to my convictions of duty — 



80 

for the Presidential nomination, Judge Field said: 'While I am 
not insensible to the high conipliineut paid to me by this expres- 
sion of your preference and conlidence, I must frankly say that I 
have long since cea.sed to entertain political aspirations, and have 
frequently so advised my nearest friends. Moreover, I do not consider 
myself an available candidate, in any sense, for the very substantial 
reason that the candidate for the Presidential nomination should 
be one who would receive the united support in the convention 
of the delegation from his own State, and this I could not reason- 
ablv expect to command. I confess it would be a source of grati- 
fication to me to be supported by the State of California, but it is 
a patent fact, which it would be useless to deny, that prejudices 
exist in certain (piarters which I cannot hope to overcome with- 
out stultification of iny otticial record.' When being a>ked to 
explain what particular othcial record he referred to, he stated the 
substance of what is contained in liis letter to Mr. Johnson, given 
in the above note. 

the thiug was impossible. Indeed, I would not have changed a line of 
what I wrote, had I known beforehand that for it I should lose the sup- 
port of California, nor would I now change a line to .secure the vote of 
every man in the State. 

One of these days our good people will see their error, and then they 
will do me full justice. I am content to wait for their ultimate judg- 
ment of approval, which, sooner or later, will certainly come. They will 
then admit that a just judge could not ignore the law or tre.ities. or the 
Constitution, however ollensive and detested the persons protected by 
them may have been. And as to railway taxation, all will then acknowl- 
edge that, under any just administration of government, associated cajii- 
tal cannot be as.sessed on dilTerent principles and ta.ved at different rates 
from individual capital. And as to the Mexican grants, it will not then 
be (luestioned that the grantees had a right to stand uj)on the plighted 
faith of the CJovernment, under the treaty which gave us the m:ignilicent 
domain of Calilbrnia, that they should be protected in all their rights of 
property. Hut enough of this. Suflieient it is to say that my strong in- 
clination has long been, and still is, against being in the political contest 
of this year. I am content to remain where I am. There I n>ay do sonje 
good, and, after all, position is only desirable as a means of doing good. 

Please, therefore, at once say in the Alt<i- OiUfortiia. in some appropriate 
form, that I am not a candidate for any political ])ositi()U, and do not wish 
to be HO consideretl by any one. 

I am, very truly yours, 

(Signed) Stepukn .1. riKi.D. 

ll<»n. .Ia.mls a. Joun.sun. 



81 

" The delegation united in expressing to him the conviction 
that the support of California in the convention was immaterial, 
in view of the lact that his candidacy would be advanced from 
national, rather than from local, standpoints, and for the best in- 
terests of Democi'atic success. They thereupon pressed him to 
know whether, in the event of his nomination, he would accept 
the same. Judge Field reflected for a moment, and replied: 
'Such a contingency is scarcely possible. I have made no etibrt 
to secure the nomination, and have discouraged all efibrts on the 
part of my friends to that end. But there is no instance in the 
history of the country where the nomination of a National Con- 
vention actually tendered has been refused, and I have no idea 
that I should prove an exception.'" 

Notwithstanding this interview, the gentlemen from 
Missouri ^and other friends of the Judge in California 
continued to make reference to him as a possible candi- 
date, and to advocate his nomination. 

That course only increased the bitterness of hostile 
partisans in California, and led to his denunciation in the 
State convention called to appoint delegates to the Na- 
tional Convention, a denunciation which did not disturb 
him in the least. In referring to it he simply remarked 
that far better and wiser men than himself had been 
reviled, persecuted, and driven from their country for 
causes which were afterwards repeated to their honor, and 
for which monuments were erected to their memor}-; and 
he was content to abide his time. But not so others. The 
most respectable persons of the community were indig- 
nant at the conduct of the convention.* 

*The Alta-California, in its issue of June 15, 1884, said: 
" The Democratic convention did some extraordinary things, but the 
most extraordinary of all was the passage of the resolution opposing the 
candidacy of Mr. Justice Field for the Presidency. Under any circum- 
stances a resolution by a State convention, opposing the candidacy of a 
distinguished member ol the party, would be out of place, and the first 
recorded case of the kind occurred at Stockton. But when we consider 
that the denunciation was directed against a citizen of our own State, a 
citizen who has done more for the State than any other, a citizen whose 
person and character are always mentioned with genuine afTecUDii by the 
best elements of California society, then it becomes a matter of prolouud- 
11 



82 

In the summer of 1881, Judge Field went to Europe, 
and remained abroad several months, extending liis 
journey to the East, and revisiting Athens and Smyrna, 

est astonishment that any body of men, with the slightest claims to 
decency, could have stumbled so far from the path of honorable political 
warfare. What were the causes that led up to the passage of tiiis reso- 
lution will naturally be asked. It must be remembered that Demo- 
cratic local politics are in confusion in this State, and that such has been 
the case since the great upheaval of the sand-lot. In the midst of that 
uprising against property and all the decencies of society, and just as 
that element had overthrown all political parties and shuttered tiie De- 
mocracy to fragments, and wliilst the slogan of the sand-lot, ' tlie Cliiuese 
must go,' was still ringing in the ears of the terrified peojile, it became 
the duty of Mr. Justice Field to sit in judgment upon the famous queue 
ordinance. He decided the ordinance to be unconstitutional, and also 
decided in another suit against Chinese laundrymen, brought for vexa- 
tion and blackmail, tliat Chinamen must be governed b}' the general laws 
of the land, and that the business conducted by them must be governed 
by general laws, applicable to the class of business, and not by laws 
directed solely agaiust them as a class. The decisions of Mr. Justice 
Field, striking down the wretched, abortive, and unconstitutional legis- 
latiftn of this State with reference to the Chinese, were received with 
openly expressed hostility and denunciation by the sand-lotters. 

"Then ciiiue the New Constitution craze, during wliich all the dissatis- 
fied elements of society united with the sand-lot in the construction and 
adoption of a constitution which violated every principle of political 
economy and acknowkilged axiom of the science of government. .Mr. 
Justice Field was compelled in the discharge of his duty to strike null 
certain provisions of this constitution which discrimiuateil in the matter 
of taxation against railroatl and other quasi-public corporations anil sub- 
jected them to a mode and mt-asure of a.ssessment not ai)plieil to natural 
persons. .Mr. .Justice Field luld that corporations were mere aggrega- 
tions of natural persons and were as much entitled to the equal protec- 
ti<tn of the law as natural persons, and also held that the provisions in 
question violated the Fourteenth Anu-ndment, in that they denied to 
corporations the eijual protection of the laws. This di-cision aroused 
the hostility of the sand-lot and the supi)orters of the New Constitution. 
Finally tlw Workingmtn's party and the .\rw Constitution party became 
disintegrated and the members went back to tluii old allilialions, the 

majority drifting back to the Democratic party ind so (he late 

convention teas ortjanizcd, Hh members noisi/, tumttlluoiut, riuUnt and dema- 
gogical, and iln action the exact reproduction of the scenes which used to occur 
in the old sand-lot and New Constitution parties.^' 

Till- Argonaut in its i.s.sue of .June 2H, IHSI, said : 

" Nothing has occurred in the history of California which ha.s caused 



83 

where he had spent several happy years of his boyhood 
half a century before. 

When he was at Smyrna, in company witli the consul, 
he called upon the Pasha. Fifty years before he had 
called upon the then Pasha in company with Commodore 
Porter. That officer had been appointed by President 
Jackson, in 1831, charge dfaffairs to the Sublime Porte. 
On his way to Constantinople he stopped at Smyrna, or sub- 
greater mortification and regret to its intelligent citizens tlian the conflnct 
of the Democratic party, as indicated by its proceedings in the State conven- 
tion toward Mr. Justice Stephen J. Field. This gentlemen's high standing 
is acknowledged in other lands and other States. His pre-eminent ability 
is recognized. He is justly eminent for his splendid talents. . . . 
He has filled with honor the highest judicial position in our State. 
He fills with honor his present position upon the Supreme Bench of 
the United States. He has impressed himself upon every page of our 
history. His work is seen in our legislative and judicial systems as a 
creation. He molded our land laws; he established our water code; he 
formulated our municipal governments; he is written all over that chap- 
ter in the history of California which enabled an American community 
to enter a conquered territory, to come into a land of strange language 
and civil law, to successfully establish an American State, and to suc- 
cessfully maintain itself in the presence of invading barbarism. Judge 
Field has displayed the fearlessness of his judicial courage in breasting 
the waves of popular violence, and in daring to hold in contempt the 
worthlessness of public clamor. In the test-oath cases he disi)layed an 
adherence to principles which reached the sublimity of judicial firmness 
and independence — decisions which, in the heated passions of the moment, 
turned upon him a torrent of unreserved abuse. This he has outlived 
and survived, receiving the grateful recognition of intelligent men North 
and South, and intelligent lawyers everywhere. In rebuking the absurd 
attempts of California demagogues to violate every rule of law and 
humanity in reference to the Chinese, he again demonstrated that in his 
loyalt}^ to principle he was not to be turned aside. In the railroad cases, 
and all other cases which he has been called upon to determine, he has 

illustrated his fidelity to the laws His respect for the law 

is so profound and his knowledge of it so intimate, that he could not 
violate its fundamental principles to subserve his per.sonaI advancement, 
if he would. These judicial decisions have brought upon him all the vile 
hatred of the meaner and more ignorant of that class of Democratic, 
Sand-lot, and New Constitution Democrats who have crawled to tlie sur- 
face of the Democratic party in this State. Democratic ignorance and 
malignity culminated at Stockton. The Democratic convention was the 
apothesis of everything which was base, and cowardly, and contemptible." 



84 

sequently visited it, and whilst there collected all the Amer- 
icans he could, and called with them upon the Pasha. The 
Judge was then fourteen years of age, and he accompanied 
the others. A dragoman went with them, and as they en- 
tered the presence of the Pasha the dragoman kneeled and 
kissed the hem of his garment, and took a seat at his 
feet where he remained during the interview. The Pasha 
was dressed in the flowing robes of the Turkish costume, 
and wore a turban. He was seated on a divan, and as 
the i»arty, which consisted of about twelve persons, entered 
the room, he beckoned them to be seated by his side. 
Chibouks and coffee were brought. One circumstance of 
the interview the Judge distinctly remembers in the con- 
versation between the Pasha and the Commodore. Tiie 
Pasha said to him: "I see that you are Commodore: 
where is the Admiral of your navy?" The Commodore, 
turning around, .said, "Our Admirals are in tlie future," 
and pointed to Field, then, as before stated, a boy of 
fourteen years of age. Some years afterwards, when at 
Washintrton, the Judge related this storv to tiie son of 
tlie great Coimiioiloi'c. who was himself an .Vdniii-al. and 
it seemed to jdease him very much. When the Judge 
called in 18S1, witli the American consul, Uj)on the suc- 
cessor of this Pasha, he was a.sked if that was ins first 
visit. He replied, "No, I was here il y a rinquante ans," 
that is, fifty years ago. The Pa.sha said, " Cinque a?Ks." tiiat 
is, five years ago. " No," he replied, " nn demi sircle," that 
is, half a century ago. "You mu.>^t, then, .see." sai<l the 
Pasha, "a great ehange now." "Nowhere .^o much." lie 
repliecl, "as in this rofim." To (piote his language: 
" When I came hiTe fifty years ago I saw yt)ur i)redece.s.sor 
in llowing robes, wi'aring a turban, sitting on a divan, 
and we only conversed with him through a drag(»inan. 
I see you in l\iiropran dress, wearing a ft/., ami I carry on 
conversation with you in l''!'eii(h. I see. instead of a 
divan, chairs and sofas; instead nf the cliib<tnk I am 
ollered a cigarette, and 1 look out of the window, and in- 



85 

stead of the slow-moving camel I notice a tramway — a 
greater change L could hardly expect to see." A very 
pleasant interview the Judge and the consul had with" the 
Pasha, and as he left, the Pasha offered him an escort if 
he wished to visit any of the surroundings of the city, or 
to go to Ephesus, there being, at the time, rumors of 
brigands in the neighborhood. 

When the Judge visited Athens he found Rev. and 
Mrs. Hill still alive, Mr. Hill being over ninety and 
Mrs. Hill not far from eighty 3'ears of age. When a 
boy the Judge had escorted Mrs. Hill in a Greek vessel 
from Smyrna to Athens, leaving Smyrna about the 20th 
of December, 1831, and arriving at Athens the first of 
January, 1832. Pie passed the following winter with her 
and attended a Greek school. Mr. and Mrs. Hill soon 
afterwards established at Athens a school for young ladies, 
which became a very successful and useful seminary of 
learning. The Judge found that great respect was enter- 
tained for them by the Greek Government and people 
generally. The daughters of the most distinguished 
families of Greece received their education there. Mrs. 
Hill said to the Judge that he was the only admirer of 
hers in her youth, who had come back to see her after the 
lapse of half a century. He spent a few days, with great 
pleasure there, passing a great deal of time in conversa- 
tion with his old and dear friends. 

Whilst in Athens he also visited Dr. Schliemann and 
listened to his enthusiastic accounts of his explorations 
of ancient Troy. He wandered among tlie ruins of 
Athens, stood on Mars Hill and read the address of St. 
Paul, and felt fully the force of his language, as when the 
Apostle, looking on one side, saw the Acropolis and the 
magnificent Parthenon, and the statue of Minerva, and 
before him the temple of Theseus, said: " God that made 
the world and all things tlierein, seeing that He is Lord 
of heaven and earth, dvvelleth not in temples made with 
hands." (Acts, 17, 24.) All the recollections of his early 
years came back with great force. 



S6 

On his return in the fall from his trip he resumed his 
regular judicial duties with additional vigor and pleasure. 

His course on the bench has been one of simple dignity. 
No disturbances or unmanly disputes have occurred dur- 
ing his long career. Only in two instances has he been 
called upon to impose any punishment for disorderly or 
contemi)tuous proceedings in court. One was in the case 
of a Frenchman by the name of Moulin, who became de- 
nunciatory and oHensive in his remarks to the judges in 
open court; and the other was ujjon Judge Terry and 
his wife, the one having personally insulted the Judge 
with gross im})Utations upon him, and the other having 
been guilty of violent proceedings in court. The circum- 
stances of this latter case require further notice as show- 
ing not only the contempt committed by them, but also 
the subsequent attempted assassination of the Judge and 
the proceedings following it. I take, from the opinion of 
Judge Sawj'er, in the case of tliL' IVtitioii of i);iviil Xeagle, 
a statement of the facts: 

"On the 3d of September, 18H8, certain cases were ponding in 
the Circuit Court of the United States for the Northern District 
of California, between Frederick W. Sharon, as e.xecutor, w. 
David S. Terry and Sarah Althea Terry, his wife, and between 
Francis G. Newlands, as trustee, and others against the sanie par- 
ties, on demurrers to bills to revive and carry into execution the 
final decree of the court in the suit of Williiiin Sharon r-<. Sarah 
Althea Hill, and were decided on that day. That .<uit was brought 
to have an alleged marriage contract between the parties adjudged 
to be a forgerv, and (jhtain its surrender and cancellation. The 
decree rendered adjudged the alleged maniagr coiitiact id lie a 
forgerv, and onlered it to he surrendered and canceled. The de- 
cree was rendered after the death of William Sharon, and was 
therefore eiitereil as dl'tlie ilav wlieii the ca>e was subiiiitted to 
the court. By rea.'^on of the death of Sharon it was necessary, in 
order to execute the decree, tljat ti)e suit should he revived. Two 
hills were fded. <iMe liy the executor of the estate of Sliaron, and 
the other a Itill ol" revivor and siippleuiental hy Newlands as 
tru.stee fur that purpose. 



87 

"In deciding the cases, the court gave an elaborate opinion 
upon the questions involved, and whilst it was being read certain 
disorderly proceedings took place for which the defendants, David 
S. Terry and his wife, were adjudged guilty of contempt and 
ordered to be imprisoned. The following is an accurate state- 
ment of those proceedings, slightly condensed from the opinion 
of the court delivered on the subsequent application of David S. 
Terry to have the order of commitment revoked. For the whole 
proceeding, see In re Terry, 36 Fed. Rep. 419. 

■' Shortly before the court opened, the defendants came into the 
court-room and took their seats within the bar at the table next 
to the clerk's desk, and almost immediately in front of the Judges, 
the defendant, David S. Terry, being at the time armed with a 
bowie-knife concealed on his person, and the defendant, Sarah 
Althea, his wife, carrying in her hand a small satchel which con- 
tained a revolver of si.x chambers, five of which were loaded. 
The court at the time was held by the Justice of the Supreme 
Court of the United States allotted to this circuit, who was pre- 
siding ; the United States Circuit Judge of this circuit ; and the 
United States District Judge of Nevada, called to this district to 
assist in holding the Circuit Court. Almost immediately after 
the opening of the court, the Presiding Justice commenced read- 
ing its opinion in the cases mentioned, but had not read more 
than one-fourth of it when the defendant, Sarah Althea Terry, 
arose from her seat and asked him, in an excited manner, whether 
he was going to order her to give up the marriage contract to be 
canceled. 

" The Presiding Justice replied, * Be seated, madam.' She 
repeated the question, and was again told to be seated. She 
then cried out, in a violent manner, that the Justice had been 
bought, and wanted to know the price he held himself at ; that 
he had got Newlands' money for his decision, and everybody 
knew it, or words to that effect. It is impossible to give her exact 
language. The Judges and parties present diflTered as to the pre- 
cise words used, but all concurred as to their being of an exceed- 
ingly vituperative and insulting character. 

" The Presiding Justice then directed the Marshal to remove 
her from the court-room. She immediately exclaimed that she 
would not go from the room, and that no one could take her from 
it, or words to that effect. The Marshal thereupon proceeded to- 



wards her to carry out the order tor her removal and compel her 
to leave, when the defendant, David S. Terry, rose from his seat, 
evidently under i,n-eat excitement, exclaiming, among other 
things, 'No living man shall touch my wife I' or words of that 
import, and dealt the Marshal a violent blow in his face.* He 
then unbuttoned his coat and thrust his hand under his vest, 
where his bowie-knife was kept, apparently for tlie ])urpose of 
drawing it, when lie was seized Ijy persons present, his hands held 
from drawing his weapon, and he himself forced down on his 
back. The Marslial then removed Mrs. Terry from the court- 
room. .Soon afterward Mr. Terry was allowed to rise, and was 
accompanied by othcers to the door leading to the corridor on 
which was the Marshal's office. As he was about leaving the 
roon), or immediately after step])ing out of it, he succeeded in 
drawing his knife, when his arms were seized by a Deputy Mar- 
shal and others present, to ])revent him from using it, and ihey 
were able to take it from him only after a violent struggle. 

" The petitioner Neagle wrenched the knife from his hand, 
whilst four other persons held on to the arms and body of Terry, 
one of whom presented a ])istol to his head, threatening at the 
same time toshoot him if he did not give up the knife. To these 
threats Terry paid no attention, but held on to the knife, actually 
passing it during the struggle from one hand to another. 

"Mr. Cro.ss, a prominent attorney, who on that occasion sat 
next to Mrs. Terry, a litle to her left and rear, tesiities that just 
before she arose to interrupt Justice Field she nervously worked 
at the chi-sp of a small satchel about nine inches long, and tried 
to open it; and not succeeding, in consequence of her excitement, 
she hastily sprang to her feet and interrupted the Justice as here- 
inbefore stated. Knowing that she had before drawn a pistol 
from a similar satchel in the Master's room, he concluded at this 
time lliat siie was tryingloget her pistol out, and he con.-iequently 
held hiinsell in readiness to s^eize her arm as soon as it should 
appear, and endeavor to prevent its use until he couUl gt-t a.-v-ist- 
ance, his right aim liein:: pailially disabled. (.S.*e Sharon v. Ilill, 
11 Sawyer, 12'.].) At this time Mrs. Terry sat directly in front of 
Justice Field and the Circuit .Judge, less than four yards from 
either. .\ loadid revolver was alterwanls taken froiii this satchel 

' ()m- of llir witncssi's stalcil tliat TiTr^' al.su .said, '' Ciet a writtni or- 
dfi I'loiii till- cimrt.'' 



89 

by the Marshal. For their conduct and resistance to the execu- 
tion of the order, of the Court, the defendants, Sarah Althea 
Terry and David S. Terry, were adjudged guilty of contempt and 
ordered to be imprisoned, the former for thirty days and the latter 
for six months. 

"In consequence of the imprisonment which followed, various 
threats of personal violence to Justice Field and the Circuit 
Judge were made by Terry and his wife. Those threats were that 
they would take the lives of both Judges; those against Justice 
Field were sometimes that they would take his lite directly, at 
other times that they would subject him to great personal in- 
dignities and humiliations, and if he resented it they would kill 
him. 

"These threats were not made in ambiguous terms, but openly 
and repeatedly, not to one person, but to many persons, until they 
became the subject of conversation throughout the State and of 
notice in the public journals. Reports of these threats through 
the press and through the reports of the United States Marshal 
and United States Attorney reached Washington, and in conse- 
quence of them the Attorney-General thought proper to give 
instructions to the Marshal of the United States for the Northern 
District of California to take measures to protect the persons 
of those judges from violence at the hands of Terry and his wife. 
On the return of Justice Field from Washington to attend his 
circuit in June last, [1889] the probability of an attack by Judge 
Terry upon him was the subject of conversation throughout the 
State, and of notices in some of the journals in the city of San 
Francisco. It was the general expectation that if Judge Terry 
met Justice Field violence would be attempted upon the la:ter. 

"In consequence of this general belief and expectation, and the 
fact that the Attorney-General of the United States had given 
instructions to the Marshal to see that the persons of Ju>tice Field 
and of the Circuit Judge should be protected from violence, the 
Marshal of the Northern District appointed the petitioner in this 
case, David Neagle, to accompany Mr. Justice Field whilst en- 
gaged in the perfurnuxnce of his duties and whilst passing from 
one district to another within his circuit, so as to guard him against 
the threatened attacks. He was specially commissioned as a 
deputy by Mr. Franks, whose instructions to him were that he 
should protect Justice Field at all hazards, and, knowing the 
12 



00 

violent and desperate character of Terry, that he should be active 
and alert, and be fully prepared Ibr any.eniergeucy, but not to be 
rash ; and in case any violence was attempted from any one, to call 
upon the assailant to sto]), and to inform him that he was an otiicer 
of the I'nited States. 

"Judge Terry was a man of great size and strength, who had 
the reputation of being always armed witli a bowie-knife, in the 
use of which he wji.-: specially skilled, and of showing great readi- 
ness to draw and use it upon persons towards whom he entertained 
any enmity or had any grievance, real or fancied, 

"On the «th of Aiigu.^t, 18«9, Ju.stice I'leld left San Francisco 
for Los Angeles in order to hear a habeas corpus case which was 
returnable before him at that city on the lUth of August, and 
also to be present at the opening of the court on the 12th. He 
was accompanied by Deputy Marshal Neagle, the petitioner. Jus- 
tice Field heard the habeas corpus case on the 10th of Augu.«t. 
On the 12th of August he opened the Circuit Court, Judge Iloss 
sitting with iiim, and he delivered on the latter day an opinion in 
an important land case, and also an opinion in the habeas corpus 
ca.se. On the following day the court heard an application for 
an injunction in an important water case from San Diego County. 
No other ca-sos being ready for hearing before the Circuit Court, 
he took the train on Tuesday, the Dkh, at \^^0 o'clock in the 
afiernoon, for San Francisco, where he was expected to hoar a 
case then awaiting his arrival, being accompanied on his return 
by Deputy .Mar.-hal Neagle. On the morning of the 1-Jth. be- 
tween ihc lioui-s of seven and eight, the train arrived at Lathrop. 
in San .{(KUjuin County, which is in the Northern District of Cali- 
foiiiia, a station at which the train stop[)t'd for l)reakfast. Justice 
Field ami I lie Deputy Marshal a! once entered the dining-room 
there to take their breakfa.>t, and took their .seat.>< at the third 
table in the middle row of tal)les. .Iu.><tice Field seated himself at 
the extreme end, y^x tin; side looking toward the ddor. The 
Deputy Marshal took the next si'at on (lie left of the Jii>tiie. 
What subsLMpienlh oeeurnd is tiius staled in the lestimonv of 
Justice I'ield : 

"A few minutes afterwards Judge reriy and his wife came in. 
When Mrs. Terry saw me, which she did direeily she got diagon- 
ally opposite nie, she wheeled arouml .- iddeulv and went out in 
great haste. 1 afierwards iinderslood that slie went for iier ^alehel. 



91 

Judge Terry walked past, opposite to me, and took his seat at the 
second table below. The only remark I made to Mr. Neagle was, 
'There is Judge Terry and his wife.' He remarked, 'I see him.' 
Not another word was said. I commenced eating my breakta.st. 
I saw Judge Terry take his seat. In a moment or two afterwards 
I looked round and saw Judge Terry rise from his seat. I sup- 
posed at the time he was going out to meet his wife, as she had 
not returned, so I went on with my breakfast. It seems, however, 
that he came round back of me — I did not .^ee him— and 
struck me a violent blow in the face, followed instantaneously by 
another blow. Coming so immediately together, the two blows 
seemed like one assault. I heard 'Stop! stop!' cried by Neagle. 
Of course I was for a moment dazed by the blows. I turned my 
head round and saw that great form of Terry, with his arm 
raised and his fists clenched to strike me. I felt that a terrific 
blow was coming, and his arm was descending in a curved way, as 
though to strike the side of my temple, Avheu I heard Neagle cry 
out, 'Stop! stop! I am an officer!' Instantly two shots followed. 
I can only explain the second shot from the fact that he did not 
fall instantly. I did not get up from my seat, although it is 
proper for me to say that a friend of mine thinks that I did; but 
I did not. I looked around and saw Terry on the floor. I looked 
at him and saw that peculiar movement of the eyes that indicates 
the presence of death. Of course it was a great shock to me. It 
is impossible for any one to see a man in the full vigor of life, with 
all those faculties that con.stitute life, instantly extinguished, wiih- 
being affected, and I was. I looked at him for a moment, then rose 
from my seat, went around and looked at him again, and passed 
on. Great excitement followed. A gentleman came to me whom 
I did not know, but I think it was JNIr. Lidgerwood, who has been 
examined as a witness in this case, and said : ' What is this ? ' I 
said: 'I am a Justice of the Supreme Court of the United States. 
My name is Judge Field, kludge Terry threatened my life and 
attacked me, and the Deputy Marshal has shot him.' The Deputy 
Marshal was perfectly cool and collected, and stated : ' I am a 
Deputy ^Marshal, and I have shot him to protect the life of Judge 
Field.' I cannot give you the exact words, but I give them to 
you as near as I can remember them. A few moments afterwards 
the Deputy Marshal said to me: 'Judge, I think you had better 
go to the car.' I said, ' Very well.' Then this gentleuuxu, Mr. 



02 

Lidgerwoed, said : " I think you had better.' Aud with the two 
I went to the car. I asked Mr. Lidgerwoed to go back and get 
my hat and cane, which he did. The Mai-shal went with me, 
ren\ained some time, and then left his .seat in the car, and, as I 
thought, went back to the dining-room. (This is, however, I am 
told, a mistake, and that he only went to the end of the car.) 
He returned, and either he or some one else stated that there was 
great excitement; that Mrs. Terry was calling for some violent 
proceedings. I must say here that, dreadful as it is to take life, 
it was only a (jueslion of .<econds whether my life or Judge Terry's 
life should be taken. I am firmly convinced that had the Marshal 
delayed two seconds both he and inysrlf would have been the vic- 
tims of Terry." 

"In answer t(j a (juestion whether he had a pi.-tol or other 
weapon on the occasion of the homicide, Justice Field replied: 
' No, sir. I have never had on my person or used a weapon 
since I went on the bench of the Supreme Court of the State, on 
October 13, 1857, except once. That was on an occusion when I 
cro.«sed the Sierra Nevada Mountains in 1-St)2. With that ex- 
ception, I have not had on my j)erson or used a pistol or other 
deadly weapon.' 

"Mr. Neagle in his tcstiuiony stated that before the train ar- 
rived at Fresno, he got up ami went out on the platform, leaving 
the train, and there saw Judgt' Terry and his wife get on the 
cars; that when the train arrived at Merced he spoke to the con- 
ductor, Woodward, and informed him that ho was a Deputy 
United States Marshal ; that Judge Field was on the train, and 
also Judge Terry and his wife, and that he was apprehensive that 
wiicn the train arrived at Lalhrop tlieie would be tr()uble between 
tho.>^e parties, and impiired whether there was any ollicer at that 
station, and was infoiiued in re]ily that there was a constable 
there; that lu- then rcipiested the (•oM<luctor to send word to the 
otlicer to be at Lathrop on the arrival ot" the train, and that he 
also apjdied to other parties to imluce them to endeavor to secure 
itssistance for hiui al that place in ease it should be needed. The 
Deputy Marshal I'uitlu-r stated that when the train arrived at 
Lathrop, .lustiee I'ield wi-nt into the dining-room, he accompany- 
ing the .Justice ; thai they took seats at a talile; that shortly after 
they were seatiMJ, Judge Terry and his wife entered the dining- 
room, his wile following him .several feet in the rear; that when 



93 

the wife reached a point nearly opposite Justice Field, she turned 
around and went out rapidly from the room, and, as appeared 
from what afterward followed, she went to the car to get her satchel. 
When she returned from the car, the satchel was taken from her, 
and it was found to contain a pistol — revolver — containing six 
chambers, all of which were loaded with ball. This jiistol lay on 
the top of the other articles in the satchel. The \vitness further 
stated that Judge Terry passed down opposite Justice Field, 
to a table below where they were sitting ; that in a few 
minutes, whilst Justice Field was eating, Judge Terry 
rose from his seat, went around behind him — the Justice 
not seeing him at the time — and struck him two blows, 
one on the side and the other on the back of the head ; 
that the second blow followed the other immediately; that 
one was given with the right hand and the other with the 
left; that Judge Terry then drew back his hand, with his fist 
clenched, apparently to give the Justice a violent blow on the side 
of his head, when he, Neagle, sprang to his feet, calling out to 
Terry, 'Stop! stop! I am an officer!' that Terry bore at the time 
on his face an expression of intense hate and passion, the most 
malignant the witness had ever seen in his life, and that he had 
seen a great many men in his time in such situations, and that the 
expression meant life or death for one or the other; that as he cried 
out those words, 'Stop ! stop! I am an officer! ' he jumped between 
Terry and Justice Field, and at that moment Judge Terry ap- 
peared to recognize him, and instantly, with a growl, moved his 
right hand to his left breast, to the position where he usually 
carried his bowie-knife; that, as his hand got there, the Deputy 
Marshal raised his pistol and shot twice in rapid succession, killing 
him almost instantly. He further stated that the position of Judge 
Field was such — his legs being at the time under the table, and 
he sitting — that it would have been impossible for him to have 
done anything even if had been armed, and that Judge Terry had 
a very furious expression, which was characterized by the witness 
as that of an infuriated giant. He also added that his cry to him 
to stop was so loud that it could be heard throughout the whole 
room, and that he believed that a delay in shooting of two seconds 
would have been fatal both to himself and Justice Field. 

"The facts thus stated in the testimony of Justice Field and 
the petitioner were corroborated by the testimony of all the wit- 



94 

nesses to the transaction. The petitioner soon afterwards accom- 
panied Justice Field to the car, and whilst in the car he was 
arrested by a constable, and at the station below Lathrop was 
taken by that officer from the car to Stockton, the county seat of 
San Joaquin County, where he was lodged in the county jail. 
Mr. Justice Field was obliged to continue on to San Francisco 
without the protection of any officer. On the evening of that day 
Mrs. Terry, who did not .see the transaction, but was at the time 
outside of the dining-room, made an affidavit that the killing of 
Judge Terry was murder, and charged Justice Field and Dejjuty 
Marshal Xeagle with the commission of the crime. Upon this 
affidavit, a warrant was issued by a Justice of the Peace at Stock- 
ton against Xeagle and also against Justice Field. Subsequently, 
after the arrest of Justice F'ield, and after his being released l)y 
the United States Circuit Court on habeas corpus upon his own 
recognizance, the proceeding against him before the Justice of the 
Peace was dismissed, the ( Jovernor of the State having written a 
letter to the Attorney-General of the State, declaring that ilie 
proceeding, if pei*sisted in, would be a burning disgrace to the 
State, and the Attorney-Cieneral having advised the District 
Attorney of San Joaquin County to dismiss it. There was no 
other testimony whatever before the Justice of the Peace except 
the affidavit of Sarah Alihea Terry upon which the warrant was 
issued. 

"In the suit of William Sharon against Mrs. Terry in the Cir- 
cuit Court of the United States, it was adjudged that the alleged 
marriage contract between her and Sharon, produced by her. was 
a forgery, and it was held that she had atteuipted to support it by 
perjury and subornation of perjury. She had also made threats 
during the past year, and up to the time of the shooting of Judge 
Terry, that she would kill ihr ( 'ircuit .Judge and tlustice Field, 
and she repeated thai ilmai u]) to the time she made her affidavit 
for the arrest of . Justice l"'ield and Xeagle; and that she had 
made such threats was a notorious fact in Stockton and through- 
out the State. 

"A petition was accordingly presented, on behalf of Xeagle. to 
the Circuit C(»urt of the liiitcd Stati's for a writ of li(ilnii.'< cor/nm 
in this case, aih'giiig, amonir otiicr lhiMg>. tiiat In- was arrcsled 
and coiifmed in jirison for an ad done Ity him in the pcrformaMce 
of his duly, namely, the protection of Mr. .Justice Field, and taken 



95 

away from the further })roteclion which he was ordered to give 
to him. The writ was issued, and upon its I'eturn the Sheriff of 
San Joaquin County produced a copy of the warrant issued by 
the Justice of the Peace of that county, and of the affidavit of 
Sarah Althea Terry upon which it was issued. A traveree to 
that return was then filed in this case, presenting various grounds 
Avhy the petitioner should not be held, the most important of 
which were, that an officer of the United States, specially charged 
with a particular duty, that of protecting one of the Justices of 
the Supreme Court of the United States whilst engaged in the 
performance of his duty, could not, for an act constituting the 
very performance of that duty, be taken from the further dis- 
charge of his duty and imprisoned by the State authorities, and 
that when an officer of the United States in the discharge of his 
duties is charged with an offense consisting in the performance of 
those duties, and is sought to be arrested, and taken from the 
further performance of them, he can be brought before the tri- 
bunals of the nation of which he is an officer, and the fact then 
inquired into. The Attorney-General of the State appeared with 
the District Attorney of San Joaquin County, and contended that 
the offense of which the petitioner is charged could only be in- 
quired into before the tribunals of the State. 

"The question of the jurisdiction of the national tribunal to 
interfere in the matter was elaborately argued by counsel, the 
Attorney-General of the State and Mr. Langhorne appearing with 
the District Attorney of San Joaquin County on behalf of the 
State, and Mr. Carey, United States Attorney, and Messrs. Herrin, 
Mesick, and Wilson appearing on behalf of the petitioner. The 
latter did not pretend that any person in this State, high or low, 
who committed a crime, might not be tried by the local autliori- 
ties if it were a crime against the State, but that when in the per- 
formance of his duties that alleged crime consisted in an act which 
is deemed a part of the performance of a duty devolved upon him 
by the laws of the United States, it was within the competency of 
the national tribunals to determine in the first instance whether 
that act was a duty devolving upon him, and if it was a duty de- 
volving upon him, the officer had committed no offense against 
the State, and was entitled to be discharged." 

The court held that it was within the competency of 
the President and the heads of the executive depart- 



96 

ments representinc; him to direct that proceedings be 
taken for the protection of officers of the Government 
whilst in the discharge of their duties; that it was espe- 
ciall}' appropriate that such protection should be given 
to Justices of the Supreme Court of the United States 
whilst engaged in their respective circuits in the perform- 
ance of their duties and in proceeding to and from them 
for that purpose; that the Attorney-General, representing 
the President, was fully justified in giving orders to the 
Marshal of the California District to ajtpoint a deputy to 
look especially to the j)rotection of Justices Field and 
Sawyer from violence threatened by Terry and his wife; 
and that the Deputy Marshal, acting under instructions 
for their protection, was justified in any measures that 
were necessary for that pur[)ose, even to taking the life of 
the assailant. It also held that the courts of the United 
States had jurisdiction to protect an officer of the United 
States from arrest by State authorities for the perform- 
ance of any act imposed upon him by the Constitution 
and laws of the United States. It therefore discharged 
Neagle from arrest. 

The case and all the proceedings leading to it; the at- 
tempted assassination of Judge Field by Terry; the 
shooting of the latter by the De[)uty Marshal assigned for 
the j)rotection of Judge Field, e.xcited widespread interest 
throughout the United States, and was the subject of dis- 
cussion in all the leading periodicals of the country. 
With rare exceptions the conduct of the officers of the 
Government in giving him protection, and the action of 
the Deputy Marshal in sliooting down his as.siilant, were 
fully jusiilied. There were some, not many, wh(» insisted, 
ill their extreme devotion to States' rights, that tin.' States 
were to di-ti-ruiine whether the Deputy Marshal in ju-o- 
tecting Judge I'^ield was just i Hid in what lie did. I u m Jirr 
words, they insisted that whether an ollieer of the I'nited 
States could be protected in the discharge of his duties, 
and III!' exti'iit of lliat protecti(»n. were not to be <leter- 



97 

mined by the tribunals of tlie sovereignty under which 
he acted, but by the tribunals and officers of another 
sovereignty. 

From the judgment discharging Xeagle an appeal was 
taken to the Supreme Court of the United States, and by 
it that judgment was affirmed. The doctrine declared in 
these decisions was of a most important character, for 
weak, indeed, would be that government whose officers 
could not be protected by its tribunals, but who would 
have to seek that protection in another and diflerent sov- 
ereignty. 

While the leading periodicals throughout the country 
spoke approvingly of the action of the Government, the}^ 
commended in strong terms the conduct and bearing of 
Judge Field during the trying proceedings. A citation 
from one or two of these periodicals will be sufficient to 
indicate the general spirit of all. 

The New Orleans Times-Democrat, in one of its issues at 
this period, used the following language: 

" If Judge Field of the Supreme Court, one of the nine highest 
judges under our republican government, iu traveling recently 
over his circuit in California, had been left at the mei-cy of ihe 
violent man who had repeatedly threatened his life, who had 
proved hiiuself ready with the deadly knife or revolver, it would 
have been a disgrace to American civilization ; it would have 
been a stigma and stain upon American manhood ; it would have 
shown that the spirit of American liberty, which exalts and pays 
reverence to our judiciary, had been replaced by a public apathy 
that marked the beginning of the decline of patriotism. Judge 
Field recognized this when, on being advised to arm him- 
self in case his life was endangered, be uttered the noble words : 
' No, sir; I do not and will not carry arms, for when it is known 
that the judges of the courts are compelled to arm themselves 
against assaults offered in consequence of their judicial action it 
will be time to dissolve the courts, consider the government a 
failure, and let society lapse into barbarism.' That ringing 
sentence has gone to the remotest corner of the land, and every- 
where it has gone it should lire the American heart vviih a proud 
resolve to protect forever the sanctity of our judiciary." 
13 



98 

The New York Tlerald, in its i?siie of August 19, 1889, 
said: 

" The sensation of the i)ast week is a lessou in republicanism 
and aeulogiuni on the majesty of the law. 

" It was not a personal controversy between 8te|)hen J. Field 
and David .S. Terry. It was a conHicl between law and lawless- 
ness — between a judicial otticcr who represented tin- law and a 
man who sought to take it into his own hands. One eml)odied the 
})eaceful power of the nation, the will of the peojile ; the other 
defied that power and appealed to the dagger 

"Justice Field's whole course shows a conception of judicial 
duty that lends grandeur to a republican judiciary. It is an 
inspiring example to the citizens and especially to the judges of 
the country. He was reminded of the danger of returning to 
California while Judge Terry and his wife were at large. His 
firm answer was that it was his duty to go and he would go. He 
was then advised to arm himself for self-defense. His reply em- 
bodies a nobility that should make it historic: ' When it comes 
to such a pass in this country that judges of the courts find it 
necessary to go armed it will be time to close the courts them- 
selves.' 

"This sentiment was not born of any insensibility to danger. 
Justice Field fully realized the peril himself. Hut above all feel- 
ing of personal concern arose a lofty sense of the duty imposed upon 
a justice of the nation's highest court. The otiicer is a representa- 
tive of the law — a uiiuister of ])eace. He should show by his 
example thai llie law is suprcnic; that ail iiiusi Ixuv to its author- 
ity; that all lawlessness must yield to it. When judges who 
represent the law resort to violence even in .self-defense, the |>istol 
instead of the court becomes tiic arliiter ol' controversies and tin 
authority of the government gives way to the power of the mob. 

" Kallicr than set a precedent that might tend to such a result, 
that would .-hake popular conlidence in the judiciarv, that would 
leiul any i-ncixiragtiuent to violence, a judge, Ji^ Justice Field 
evidently fell, may well risk his own life for the welfare of the 
commonweallii. llrdid not even faV(U- tlie |>ropo>iti(in that a 
marshal be detailed to guard him. 

"The course of the venerable .lusiiee is an i-xample to all who 
woidd have the law rt'speeted. It i- al-o a le>.-;on to all who 
woulil take till' law int<» their own iiauds. 



99 

" Not less exemplary was his recognition of the snpremacy of 
the law when the Sheriff of San Joaquin appeared before him 
with a warrant of arrest on the grave charge of murder. The 
warrant was an outrage, but it was the duty of the officer to serve 
it, even on a Justice of the United States Supreme Court. When 
the Sheriff hesitated and began to apologize before discharging 
his painful duty, Justice Field promptly spoke out : 'Officer, ])ro- 
ceed with your duty. I am I'eady, and an officer should always 
do his duty.' These are traits of judicial heroism worthy the 
admiration of the world." 

The Argonaut, a leading paper of San Francisco, not a 
political, but a literary paper, and edited with great abil- 
ity, in its issue of August26, 1889, used the following lan- 
guage : 

"The course of Judge Field throughout this troublesome busi- 
ness has been in the highest degree creditable to him. He has 
acted with dignity and courage, and his conduct has been charac- 
terized by most excellent taste. His answer, when recjuested to 
go armed against the assault of Terry, is worthy of preservation. 
. . . . And now that his assailant has been arrested in his 
career by death, all honest men who respect the law will breathe 
more freely. Judge Terry had gained a most questionable rej)u- 
tation, not for courage in the right direction ; not for generosity 
which overlooked, or forgave, or forget offenses against himself 
or his interests. He never conceded the right to any man to hold 
an opinion in opposition to his prejudices, or cross the path of his 
passion with impunity. He could with vulgar whisper insult the 
judge who rendered an opinion adverse to his client, and with 
profane language insult the attorney who had the misfortune to 
be retained by a man whose cause he did not champion. He had 
become a terror to society and a walking menace to the social 
circle in which he revolved. His death was a necessity, and, 
except here and there a friend of blunted moral instincts, there will 
be found but few to mourn his death, or criticise the manner of 
his taking off To say that Marshal Neagle should have acted in 
any other manner than he did moans that he was to have left 
Justice Field in the claws of a tiger, and at the mercy of an in- 
furiated, angry monster, who had never shown mercy or generosity 
to an enemy in his power 



100 

"Judge Field ha.s survived the unhappy conflict which carried 
Judge Terry to his grave. He is more highly honored now than 
when this quarrel was thrust upon him ; he has lost no friends ; he 
has made thousands of new ones, who honor him for ])rotecting 
with his life the honor of the American bench, the dignity of the 
American law, and the credit of the American name. In the 
home where Judge Terry lived he went to the grave almost un- 
attended by the friends of his social surroundings, no clergvman 
con.senting to read the service at his burial. The Supreme Court 
over which he liad jiresided as Chief Justice refused to adjourn 
i:i honor of his death, the pre.ss and public opinion, for a wonder, 
in accord over the manner of his taking off." 

Indeed, thcjmblic opinion of the country, as sliowii by 
the ]»re.ss and declarations of prominent individuals, was 
substantially one in its aj)proval of the action of the 
Government, the conduct of Xeagle, and the bearing of 
Justice Field. 

At the time of the conquest of California by the forces 
of tlie United States, on the 7th of July, 184G, there was 
a Mexican pueblo at the site of the present city of San 
Francisco. The term "pueblo" means people, or popula- 
tion, but is used very much in the.sense of the Eng;lish word 
"town." Tt is sometimes applied to a collection of indi- 
viduals residin*^ in a particular place; to .settlements or 
villages as well as to a regularly organized municijtality. 
The pueblo of San Francisco was a small .-settlement, hut 
of sufficient importance, as early as 1835, to have an 
ayanlaniiento C()in|)osed of alcaldes and other officers, 
and had continued under their government for .several 
years. At the time of the conquest, and for some time 
afterwaids, it was under the government of justices of the 
peace or alcaldes, jiy the general law of .Mt xico. which 
was in ftiree at that time, pueblos or towns wlu-n once 
recognized by juiblic authority bi'camc entitled, for their 
henelit. and for the bendit (»f their inhabitants, to the use 
of the hind eiiibr;ieing the site of the pUebhts ol' tnwns. 
and adjoining territory, within the lin)its of four sijuarc 
leagues, which were to be nie;i<ured bv the oilicer of the 



101 

government. Under these laws the pneblo of San Fran- 
cisco asserted a claim to four square leagues to be 
measured oft' from tlie northern portion of the peninsula 
upon which the present city is situated. When San 
Francisco was occupied by our forces citizens of the United 
States were appointed by the military and naval com- 
manders to act as alcades in place of the Mexican ofiicers. 
These alcades were called upon by emigrants in great 
numbers for building lots, and grants to them were made 
almost as fast as requested. Many emigrants arriving 
subsequently denied the authority of the Mexican ofiicers 
to make grants of lands, and claiming that the land within 
the pueblo was public property, they settled upon it where- 
ever they found it unoccupied. In April, 1850, after 
the organization of the State government, San Francisco 
was incorporated as a city by the Legislature. She* at 
once made claim to the lands of the pueblo as its suc- 
cessor, and when Congress had established a Board of 
Land Commissioners to settle private land claims, she 
presented her claim for confirmation to the board. In 
December, 1854, the board confirmed the claim for a 
portion of the four square leagues. Not satisfied with 
the limitation of her claim, the city appealed from the 
decree of the commissioners to the District Court of the- 
United States. The Government also appealed, but sub- 
sequently withdrew its appeal. The case remained in 
the District Court of the United States undetermined 
until September, 1864, a period of nearly ten years, when 
under the authority of an act of Congress that court trans- 
ferred the case to the Circuit Court of the United States, 
where it was decided in the following October. The decree 
was afterwards somewhat modified, and as finally settled 
was entered May 18, 1865, confirming the claim of the city 
to a tract of land embracing so much of the upper portion 
of the peninsula upon which the city is situated above 
the ordinary high-water mark of 1846 as would contain 
an area of four square leagues, the tract being bounded 



102 

on tlie north and east by the Bay of San Francisco, on 
the west by the Pacific Ocean, on the south by a due east 
and west line drawn so as to include the area designated, 
subject to certain deductions which are unnecessary to 
mention. This statement is taken from the decision 
of the Supreme Court of the United States in Trenouth 
V. San Francisco, (100 U. S. Reports, p. 251.) The land 
when confirmed was to be held in trust for the benefit of 
lot holders, under grants from the pueblo, town, or city, 
or other competent authority, and as to any residue in 
trust for the use and benefit of the inhabitants of the 
city. In Aj^ril, 1851, the old charter of the city was re- 
pealed, and a new charter granted. The limits of the 
new charter covered two miles sijuare. Pending the ap- 
peal of the pueblo claim in the District Court, the city 
passed an ordinance known in its history as the Van Ness 
Ordinance, the object of wliiili was to quiet the title of 
per-sons owning land in the city. It relinquished all 
right and claim of the city to lands within the corporate 
limits as defined by the charter of 1851, with certain ex- 
ceptions, to j)arties in actual jiossession thereof. There 
thus aro.se some contlict between parties who claimed 
under the pueblo title and those who claimed under the 
grant of the city i)y the Van Ness ordinance. 

In October following, 18{)5, the Judge proceeded as 
usual to Washington to attend the then ap})roa('liing term 
of the Supreme Court of tlie I'nited States, and thought 
no more of the decision in the I'ueblo case until his at- 
tention was drawn to it iiy a most extraordinary circum- 
stance. Just before leaving San Franci.sco Mr. Kulofson, 
a pliotographer of note, it(|uested tlie Judge to sit for a 
jdiotograph. e.\i)ressing a desire to add it to his gallery. 
The .lu<l)!;e con.M'nted. and a )»h(ttograph of a hii'ge size 
was taken. .\s lie was heaving the rooms of the |iholo- 
grapher the hitter oltsei'ved that he intt-nded to make 
some pictures of a small >i/.e from it. and would send the 
Judge a few copies. < >n the morning of ihe l.Ith of .Ian- 



10^ 



uary following, IbOG, at Washiiigloii, J)clos Lake, a lawyer 
of distinction in California, at one time a District Judge 
of the State and then District Attorney of the United 
States, joined the Judge, informing him as he did so that 
the California steamer had arrived at New York, and that 
he hoped the Judge had received some letters for him, as 
he had directed his letters to be forwarded to the Judge's 
care. The Judge replied that when he left his room his 
messenger had not brought his mail, but if Mr. Lake 
would accompany him he would probably find it there. 
Accordingly the two proceeded to the J udgc's room, where, 
on the center table, lay the Judge's mail, con.sisting of a 
large number of letters and papers. Among them the 
Judge noticed a small package, about an inch and a half 
thick, three inches in breadth, and three and one-half 
inches in length. It was addressed as follows, the words 
being printed: 



(Three postage stamps.) 

Hon. Stephen J. Field, 

Washington, D. C. 



It bore the stamp of the San Francisco post office upon 
the address. The Judge's name had evidently been cut 
from the California Reports, but the words" Wasiiington, 
D. C," and "Per Steamer" had been taken from a news- 
paper. The slips were pasted on the package. On the 
opposite side were the words in print: 



FROM 

GEO. H. JOHNSON'S 

Pioneer Gallery, 

645 and 649 Clay Street, 

San Francisco. 



As the Judge took up the package he remarked that 
this must come from Mr. Rulofson. "No," he immedi- 



104 

ately added ; " Rulofson has nothing to do with the Pio- 
neer Gallery." It then occurred to him it might be a 
present for his wife, recollecting that the mail came by the 
steamer which sailed from San Francisco about Christmas 
time. " It may be," he said, "a Christmas present for my 
wife. I will open it just far enough to see, and it be in- 
tendccl for lic-r I will close it and forward it to New York," 
where she was at the time. He accordingly tore off the 
covering, and raised the lid just far enough to enable him 
to look inside, lie was at once struck with the black 
appearance of the inside. " What is this, Lake?" he said, 
addressing himself to his friend. Judge- Lake looked 
over Judge Field's shoulder into the" box as he held it in 
his hand, and at once exclaimed, " It is a torpedo I Don't 
open it." The Judge was startled by the suggestion, as the 
idea of a torpedo was the last thing in the world to occur 
to liiiii. IK' immediately laid the package on the sill of 
the window, where it was subjected to a careful ins{)ection 
by them both, so far as it could be with the lid only one- 
eighth of an inch open. Soon afterward .ludge Lake 
took the package to the Capitol, which was directly oppo- 
site the Judge's room, and to the office of the clerk of the 
Supreme Court, and showed it to Mr. Broom, one of the 
deputies. They dipped the jiackage in water, and left it 
to soak for i^ome minutes. They then look it into the 
carriageway leading to the Senate chamber, and, sliield- 
ing themselves behind one of the columns, threw the box 
against the wall. The blow broke the hinge otf the lid 
and exposed the contents. A murderous contrivance it 
was! .\ real infernal machini'I Twelvt' cartridges, such 
as are used in a common pistol, about an inch in length. 
lay imbedded in a paste of sonje kind, covi-red with ful- 
minating powder, and was connected with a i)uncliof fric- 
tion matches, a strip of .^^and-pajjcr, ami a jiiece of linen 
attached to the lid, so that on opening the bt)X the matches 
woidd be ignite«l and the whole explode. The|)ackage was 
sent to the War I 'epartnieut, and a iipurt was returned by 



105 

the officers wlio examined it, with a detailed statement of 
the machine. Between tlie outside covering and the box 
there were two or three folds of tissue paper, placed there 
to i^revent the possibility of an explosion from the stamp- 
ing at the post office, or the striking against other pack- 
ages during the voyage from San Francisco to New York. 
On the inside of the lid was pasted a slip cut from a San 
Francisco paper, dated October 31, 1864, stating that on the 
day previous the Judge had decided the case of the city 
against the United States, involving its claim to four 
square leagues of land, and giving the opening lines of 
his opinion. The Secretary of War, Mr. Stanton, imme- 
diately telegraphed in cipher to General Halleck, then in 
command at San Francisco, to find out if possible the 
person who made and sent the infernal machine. Gen- 
eral Halleck put the detectives of his department on the 
search. Others employed the detectives of the San Fran- 
cisco police, but all in vain. Suspicions were excited as 
to the complicity of different parties, but they were never 
sustained by sufficient evidence to justify the arrest of 
any one. The instrument, after remaining in the hands 
of the detectives of San Francisco for nearly two years, 
was returned to the Judge, and is now in his possession. 
In speaking of this occurrence the Judge says it has often 
been a matter of wonder to him how it was that some good 
angel whispered to him not to open the box. His im- 
petuous temperament would naturally have led him to 
tear it open without delay. Probably such hesitation in 
opening a package addressed to him never before oc- 
curred, and probably never will again. "Who knows," 
he says, " but a mother's prayer for the protection of her 
son, breathed years before, was answered then? Who 
can say that her spirit was not then hovering over him, 
and whispering caution in his ears?" 

This is the only case, except that of the Sharon and 
Terry matter, spoken of in another portion of this sketch, 
where violence was attempted against the Judge for a 

14 



106 

decision he rendered. In consequence of the sudden rise 
of real property in California by reason of the immense 
emigration to that State, the development of its mineral 
wealth, and the discovery of the extraordinary fertility of 
its soil, the litigation in a multitude of cases involved 
great values. Parties by decisions rendered with refer- 
ence to mines, and also with reference to land titles to 
property upon which large and valuable buildings had 
been erected and even cities had grown, were made rich 
or poor in a day. Some who in the morning deemed 
themselves rich, found when the decision in their case 
was made, that they were stripped of nearly every- 
thing. Others who were deemed poor in the morning 
found themselves, by the decision, men of wealth in 
the evening. Of course, a great deal of feeling was jiro- 
duced by the decisions rendered. Those who were suc- 
cessful in their litigations found that the courts had only 
performed their duty in the decisions they had rendered. 
Those against whom the decisions were rendered couhl 
not be satisfied without imputing to the Judges, in many 
instances, dishonorable and dishonest motives. Tlieri'- 
fore it was that all judicial officers of California who 
were called upon to pass upon titles to lands and to settle 
controversies in which large amounts were involved, 
were, in many cases, subjected to gross and unfounded 
imputations. But the cases mentioned are the only ones 
recalled in which violrncr was resorted to against tht- 
•Judge for any of his decisions. 

The appreciation by the eourt for its associate. Justice 
Field, has ever been, not only kind and eourteous. Kut 
marked with expressions of great consideration. When 
till! late Chief .Justice Waite died, his associates reeom- 
mended Justice Field as liis successor. In no instance 
has so great a marlc of consideration been e.\ten<K'(l by 
Justices of tlie court to one of its own number. IJut tlie 
President seemed to consider tliat a rule, which has hereto- 
lon- prevailed in the etiurt. with hut <»ne exeeptii»n.of di-sig- 



107 

nating a member of the bar and not an associate of the 
court, to be its Chief Justice, should govern liim, and he 
passed by the recommendation of the associates of Justice 
Field. The exceptional case referred to was that of 
Associate Justice Gushing being appointed by Washing- 
ton as Chief Justice, but he declined to take the place on 
account of his age and impaired health. In no other 
instance has an Associate Justice ever been appointed. 
' The following letters from Justice Bradley and Justice 
Matthews to Mr. Field, shows the sentiments of the court. 
On the day that the nomination of Mr. Fuller as Chief 
Justice to succeed Mr. Waite was made, Justice Bradley 
wrote to Justice Field a letter on the nomination, giving 
his estimate of the persons who had previously filled this 
office, and adding : 

" It is greatly to be lamented that a popular prejudice, fostered, 
no doubt, by those who would profit by it, should exist, as it 
seeuis to do, against the promotion of an Associate Justice to the 
place of Chief Justice of the Supreme Court. The Associate 
Justices are generally selected with as much anxiety on the part 
of the Executive to procure fitness and ability for the place as 
can possibly be exercised in the selection of a Chief Justice ; aud if, 
when a Chief Justice is to be appointed, they are passed by, and 
a man is imported into the court, without the experience in gen- 
eral and Federal jurisprudence and in the business of the court, 
which they are presumed to possess, it can only be justified by 
the selection of a man who can bring to the court the prestige of 
eminence already acquired in statesmanship and knowledge of 
public law and public afi'aii-s. Qualities of this kind are of great 
assistance in the deliberations which the Supreme Court is often 
called upon to give to the questions that come before it for adjudi- 
cation. When such a selection is made, neither the public nor 
the court has, or can have, a word of complaint to utter. It has 
a fitness which challenges the approbation of all sensible men. 
But when such a man is not, or cannot be found, or is not readily 
available for Executive selection, how senseless and absurd it is 
to decry an appointment from the bench itself, especially when, 
by universal acknowledgment, it can furnish more than one 



108 

member not wanting in any requisite for the distinguished place 
to be tilled, and when, as in the present case, there is entire har- 
mony ill the bench itself as to the appointment that should be 
made. 1 think, my dear Judge, that I am not mistaken in say- 
ing that every member of the court (yourself excluded) earnestly 
desired your appointment, and most, if not all, of them distinctly 
signified to the President their wish to this effect. He had the 
frankness to concede the general correctness of our views, as I 
have stated them above, looking, as they did, to the continued 
high standing of the court in public estimation, and gave a.s.sur- 
ance that if he did not select a member.of the bench, he would 
make such a selection as would commend itself to the court as 

well as to the public 

"But, my dear Judge, you cannot be deprived of the satisfac- 
tion of knowing that if your associates could have controlled 
the appointment, you would have been Chief Justice to-day. 
You would have had not only the suffrages of your brethren on 
the bench, but I have good reason to believe that your confirma- 
tion by the .Senate would have been j)rompt and unanimous. 
" Yours, sincerely, 

(Signed) "Joseph P. Bradi.i:y." 

As the Justices of the court were about to .-separate. Mr. 
Justice Mattliews addressed to Justice Field the following 
letter: 

"^VA.s^I^•(;T()^•, D. C, June 19, 1888. 
" My 1)i:ak Jidci: I'ii:i.I): 

" We are about to part for the summer, and I may not have an 
opportunity of saying good-bye in person betbre the day of your 
departure. I take this method, ilu'icfore, of wishing yon a safe 
journey to your circuit, a jilrasaiit vacation, and your prompt 
return at the ap|)ointed time with renewed health and vigor. 
May 1 ad<l tlie wish that you were coming back as Chief Justice? 
I wish 1 could call it a hope. I certainly did cherish the desire, 
ulieii it liccaiiic proper to consider the rpiestion of filling the 
vacancy, thai the administration would tind in your promotion 
the readiest and most satisl'aclory mode of proiuoting the public 
inti^re.st. And such I kno*v was the geiuMal feeling on the part 
of your liietlireii on the liench, and that without disparagement 
to others spoken of as competent to lill the great and dignitied 



109 

position of Chief Justice. It is natural, perhaps, that we should 
think one, who had for so many years and so worthily discharged 
the fiinctious of an Associate Justice, by reason of that experience, 
better fitted to preside over the court in which lie had so honorably 
served. 

" With best wishes for you now and always, I am, 
" Your friend, 

(Signed) "Stanley Matthews. 

"Mr. Justice Field, Washington, D. C." 

At the centennial celebration of the organization of 
the Supreme Court, which took place in New York on the 
4th of February, 1889, there was an immense gathering 
of great lawyers, eminent judges, and men distinguished 
in different departments of life for honorable public 
services, from all parts of the country. Mr. Justice Field 
was selected b}'' his associates to reply, on behalf of the 
court, to the addresses which were made on that occasion. 
It is sufficient to say that the Justices were satisfied and 
pleased with the manner in which he discharged his duty. 
His reply is published in the Appendix to the 134th vol- 
ume of the United States Supreme Court Reports. 

In 1865, Mr. Field received the degree of LL. D. from 
his old alma mater, Williams College. He has been at 
different times invited to speak at its commencements, 
either in an address to its alumni or to its students, but 
has declined, from the fact that the effort to remain stand- 
ing during an address of ordinary length would be too 
fatiguing, owing to his lameness, and not from want of 
affection or respect to his old alma mater. 

In 1869 he was appointed Professor of Law in the 
University of California. In accepting it he doubted 
whether he would be able, during his continuance on the 
bench, to deliver any lectures or to hear recitations of any 
classes, but he intended to retire from the bench at the 
age of seventy, and to devote the remainder of his life to 
the duties of the professorship. Subsequent events pre- 
vented the carrying out of this purpose. 



110 

He is now seventy-six years of age, November 4, 1892/ 
and, from his vicrorous health, has the prospect of some 
years more on the V)ench. On the 13tli of October, the 
length of his service on the Supreme bench of California 
and the bench of the Supreme Court of the United States, 
together, amounted to thirty-five years. 



The labors of Judge Field on the bench of the Supreme 
Court of California contributed greatly, as already stated, 
to the settlement of land titles in that State. After he 
went on the bench of the Supreme Court of the United 
States and removed to Wasiiington,he took great interest 
in the legislation of Congress which in any way tended to 
the (juiet and security of titles in tliat State. In two in- 
stances his influence in that direction was marked. As 
stated above, there was great confusion and uncertainty 
in the titles of lands within the limits of the city of 
San Francisco. As successor of the Mexican pueblo, it 
claimed title to four square leagues of land u})on which the 
city was situated. Many citizens relied upon grants 
from the alcaldes of the ])ueblo, and many asserted title 
from possession merely. The United States considered all 
the land, not granted ])revious to the cession of California, 
as part of the public domain. To (piiet the possession of 
occupants, so far as the j)ueblo title was concerned, the 
common council of the city of San Francisco passed the 
ordinance known from the name of its author as the 
" Van Ness Ordinance." It was approved by an act of 
the legi.slature of the State in Mareli, ISoS. Of course, 
if the title was in the United States this confirmatory 
action of the legislature was inoperative. Hut doubt 
as to tlie efficacy of the eoulirmation from tliat -ource 
was removed by the act of Congress of July 1, 1SG4, 
to expedite the settlement of titles to lands in the State 
of California. (13 Stat. dia].. l!»l.) That act was in- 
troduceil into Congress and its |)assage secure< I l>y Sen- 
ator ( 'onness, of ( 'alifoi'nia. w ho always took a dec]> interest 



Ill 

in everything that tended to the advancement of the State, 
and he thought that nothing would do more for its pros- 
perity than giving security to titles to lands. In framing 
the act he consulted Judge Field, and, at his suggestion, 
inserted section five, which the Judge drafted, but without 
the proviso, which was added at the request of the 
Commissioner of the Land Office. By that section all the 
risht and title of the United States to the lands within the 
corporate limits of San Francisco, as defined by its charter 
of 1851, were, with certain exceptions, relinquished and 
granted to the city and its successors, for the uses and pur- 
poses specified in the " Van Ness Ordinance." The holders 
of grants from alcaldes of the pueblo, and the occupants 
of lands within the limits of the charter of 1851, were thus 
quieted in their possessions. Subsequently, when, upon 
the decision in the Circuit Court of the " Pueblo Case," its 
claim to four square leagues of land was confirmed, appeals 
were taken to the Supreme Court, both by tlie United 
States and by the city; by the United States from 
the whole decree, and by the city from so much of 
it as included certain reservations in the estimate of 
the quantity of land confirmed. Whilst the appeals were 
pending in that court. Congress, on the 8th of March, 18G6, 
passed an act relinquishing and granting to the city, 
all the right and title of the United States to the land 
confirmed, subject, however, to the reservations and excep- 
tions designated, and upon the trust that all the land, not 
previously granted by the city, should be conveyed to 
parties in the bona fide actual possession thereof, by them- 
selves or tenants, on the passage of the act, in such quanti- 
ties and upon such terms and conditions as the Legislature 
of the State of California might prescribe, except such 
parcels as might be reserved and set apart for public uses. 
This act was drawn by Judge Field and introduced by Sen- 
ator Conness, through whose exertions, and those of Senator 
Stewart, of Nevada, it was passed unanimously by Con- 
gress. The title of the city of San Francisco to its munic- 



112 

ipal lands rests, therefore, upon the decree of the court as 
ratified and confirmed by this act of Congress. 

The Judge also drafted many sections of laws passed 
by Congress having for their object the removal of unnec- 
essary obstructions to the administration of justice. 



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